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Earle v. Clayton

United States District Court, District of Columbia

January 8, 2020

KIMBERLY EARLE, Plaintiff
v.
JAY CLAYTON, et al., Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

         Plaintiff was employed by the United States Securities and Exchange Commission (“SEC”) from 1990 until her termination on September 18, 2018. Plaintiff disputes the circumstances surrounding her termination, which was preceded by an unacceptable performance rating, placement on a Performance Improvement Plan (“PIP”), and an offer for her to be demoted or to resign. Based on these events, in her Amended Complaint, Plaintiff brings eight claims against a myriad of SEC employees in their official and personal capacities. In Count One, Plaintiff alleges that Defendants violated her constitutional rights by improperly terminating her without due process. In Count Two, Plaintiff alleges that Defendants violated RICO, 18 U.S.C. § 1962(c), by engaging in a criminal enterprise involving false statements to federal officials, mail fraud, and extortion in order to obtain her property interest in her federal employment. In Count Three, Plaintiff alleges that Defendants violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, by discriminating against her on the basis of gender. In Count Four, Plaintiff alleges that Defendants violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, by discriminating against her on the basis of age. In Count Five, Plaintiff alleges that Defendants violated Title VII by discriminating against her on the basis of religion. In Count Seven[1], Plaintiff alleges that Defendants violated Title VII by subjecting her to a hostile work environment. In Count Eight, Plaintiff alleges that Defendants violated Title VII by retaliating against her for engaging in protected activity. And, in Count Nine, Plaintiff alleges that Defendants violated Title VII by retaliating against her for making a whistleblower complaint. Defendants have moved for a partial dismissal of Plaintiff's Amended Complaint.

         Upon consideration of the pleadings, [2] the relevant legal authorities, and the record as a whole, the Court will GRANT Defendants' Partial Motion to Dismiss. First, Plaintiff has voluntarily agreed to DISMISS her Count Seven hostile work environment claim and her Count Nine whistleblower claim. Next, the Court concludes that Plaintiff's Count One Bivens claim and Count Two RICO claim are DISMISSED as precluded by the Civil Service Reform Act (“CSRA”) and Title VII and for failing to state a claim for which relief may be granted. Furthermore, the Court finds that Plaintiff's Counts Three, Four, and Five claims for Title VII and ADEA discrimination may proceed only as to Plaintiff's termination, as that is the only cognizable adverse employment action, and only as to Defendant Clayton in his official capacity, as he is the only proper Defendant. Finally, the Court similarly finds that Plaintiff's Count Eight retaliation claim may proceed only as to Plaintiff's termination, as that is the only employment action causally connected to a protected activity, and only as to Defendant Clayton in his official capacity, as he is the only proper Defendant. Because Plaintiff's claims and the Defendants against whom those claims are made have been altered by this Memorandum Opinion, the Court further ORDERS Plaintiff to file a Second Amended Complaint, containing only the relevant allegations.

         I. BACKGROUND

         For the purposes of the Motion before the Court, the Court accepts as true the well-pled allegations in Plaintiff's Amended Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in the United States, 758 F.3d 296, 315 (D.C. Cir. 2014).

         Plaintiff began working for the SEC in 1990. Am. Compl., ECF No. 17, ¶ 79. During the relevant time period, Plaintiff worked for the SEC's Division of Economic and Risk Analysis (“DERA”) at a SK-16 pay grade. Id. at ¶ 80. Beginning in 2015 and through the relevant period, Defendant Robert Willis was Plaintiff's first line supervisor. Id. at ¶¶ 87-88.

         Plaintiff alleges that during fiscal year 2017, Plaintiff's supervisors, including Defendant Willis, Defendant Scott Bauguess, the former deputy director of the DERA, and Defendant Kim Coronel, a managing executive at the DERA, planned to create new managerial positions at the DERA, including a new senior officer position. Id. at ¶¶ 99-102. The new senior officer position was to be constructed from vacant positions in the DERA which would be repurposed. Id. at ¶ 103. However, at that time, there were no vacant positions. Id. at ¶ 105.

         At the end of fiscal year 2017, Plaintiff alleges that there were insufficient vacant positions to construct the new senior official position. Id. at ¶ 110. Plaintiff alleges that in order to create the position, one or more employees would have had to vacate their positions. Id. at ¶ 111. And, the higher the grade level of the vacant position, the fewer vacant positions would be required to create the new senior official position. Id. at ¶ 112. As a SK-16, Plaintiff was at the highest non-managerial level in the DERA. Id. at ¶ 114. Plaintiff alleges that there were three other SK-16s. But, she was the only Jewish person, the only female, and had the most years' experience. Id. at ¶ 115.

         On October 17, 2017, after fiscal year 2017 had ended, Defendant Willis asked Plaintiff to develop policy objectives for the DERA. Id. at ¶ 108. Plaintiff alleges that she responded that she would complete the policy objectives after completing more pressing work. Id. at ¶ 109.

         On November 8, 2017, Plaintiff contends that Defendant Willis told her that she had not provided him with timely policy objectives, that her performance for the fiscal year 2017 was unacceptable, and that she would be placed on a PIP. Id. at ¶ 120. Willis instructed Plaintiff to speak to Defendant Iris Rossiter, an attorney in the SEC's Office of General Counsel, about her performance rating and her PIP. Id. at ¶¶ 120, 126. Plaintiff informed her union representative of the evaluation but did not speak with Defendant Rossiter. Id. at ¶ 125.

         Plaintiff had no more communication concerning her performance rating or her PIP until January 17, 2018. Id. at ¶¶ 129-134. On that date, Plaintiff alleges that she received an email from the SEC's union indicating that Plaintiff would receive a poor written performance appraisal if she did not resign or accept a demotion. Id. at ¶¶ 135-39. On January 23, 2018, Plaintiff filed an initial claim with the SEC's Office of Equal Employment Opportunity (“OEEO”) concerning these events. Id. at ¶ 23.

         On February 20, 2018, Plaintiff was officially served with the PIP which lasted from February 21, 2018 through May 21, 2018. Id. at ¶¶ 147, 151. Plaintiff's supervisors ultimately determined that Plaintiff failed the PIP and provided her with a Notice of Proposed Removal on July 30, 2018. Id. at ¶ 175. Plaintiff, represented by counsel, submitted oral and written responses to the Notice in August of 2018. Id. at ¶¶ 177-78. The SEC removed Plaintiff from her employment on September 18, 2018. Id. at ¶ 183.

         Plaintiff alleges that she was terminated pursuant to a fraudulent employee removal method which is used by the SEC. Pursuant to this removal method, an SEC manager gives the targeted SEC employee a fraudulent annual performance appraisal showing unacceptable performance. Then, the SEC's Office of General Counsel attorney extorts the employee in order to induce a resignation or face termination. Id. at ¶¶ 60-61. In Plaintiff's case, she alleges that this removal method was used to terminate her position in order to make room for the new senior executive position. Plaintiff contends that she was targeted and terminated due to her gender, age, religion, and in retaliation for protected activity.

         On May 15, 2019, Plaintiff filed this lawsuit alleging a multitude of claims against a myriad of Defendants. Compl., ECF No. 1. Defendants filed an initial partial Motion to Dismiss. First Mot. to Dismiss in Part, ECF No. 14. Rather than responding to the Motion, Plaintiff moved for leave to file an Amended Complaint, which was granted. On September 20, 2019, Plaintiff filed an Amended Complaint. ECF No. 17. And, on October 21, 2019, Defendants again filed a Motion for Partial Dismissal and for a More Definite Statement. ECF No. 22. That Motion is currently pending before the Court.

         The claims in Plaintiff's Amended Complaint are numbered to Count 9; but, because there is no Count Six, Plaintiff makes only eight claims.

• Count One- Plaintiff alleges that Defendants violated her Fifth Amendment property and liberty rights by terminating her without due process;
• Count Two- Plaintiff alleges that Defendants violated RICO by engaging in a criminal enterprise to make false statements, commit mail fraud, and commit extortion to obtain Plaintiff's property interest in her employment position;
• Count Three- Plaintiff alleges that Defendants violated Title VII by discriminating against her based on her gender;
• Count Four- Plaintiff alleges that Defendants violated the ADEA by discriminating against her based on her age;
• Count Five- Plaintiff alleges that Defendants violated Title VII by discriminating against her based on her religion;
• Count Seven- Plaintiff alleges that Defendants violated Title VII by creating a hostile work environment;
• Count Eight- Plaintiff alleges that Defendants violated Title VII by retaliating against her for engaging in protected activity; and
• Count Nine- Plaintiff alleges that Defendants violated Title VII by retaliating against her for filing a whistleblower complaint.

Am. Compl., ECF No. 17, ¶¶ 185-251. Defendants move to dismiss, at least in part, each claim.

         II. LEGAL STANDARD

         Defendants move to partially dismiss Plaintiff's Amended Complaint under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Federal Rules require that a complaint include “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order 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) (quoting Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, to provide the “grounds” of “entitle[ment] to relief, ” a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. Instead, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 556, 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).[3]

         III. DISCUSSION

         The Court will now address the merits of Defendants' arguments for the partial dismissal of Plaintiff's Amended Complaint. The Court begins by addressing Plaintiff's concessions in her Opposition. The Court then explains why Plaintiff's Count One Bivens claim and Count Two RICO claim are precluded by the CSRA and fail to state a claim for which relief may be granted. Next, the Court explains why Plaintiff's Counts Three, Four, and Five claims for Title VII and ADEA discrimination state a claim only as to Plaintiff's termination. Finally, the Court discusses why Plaintiff's Count Eight Title VII retaliation claim also states a claim only as to Plaintiff's termination.

         A. Plaintiff's ...


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