Allovio v. Holder

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEFFREY M. ALLOVIO, et al.,
Plaintiffs,
v. Civil Case No. 11-01851 (RJL)
ERIC H. HOLDER, JR.,
United States Attorney General,
FILED
Defendant. FEB 1 1 2013
Sé\/\JS%/€é€@\/
CV`` Clerk, U.S. District & Bankruptcy
MEMORAND M PINION Courtsforthe Districtof()o|umbia
(February , 2()13) [# ll]
Plaintiffs are 34 current or retired agents with the Federal Bureau of investigation
("FBI"). Plaintiffs bring this case against defendant United States Attorney General Eric
H. Holder, Jr. in his official capacity as the agency head who oversees the FBI. Plaintiffs
claim that the FBI violated the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 63321, by instituting a policy that limits the term of field positions held by grade
GS-l4 Supervisory Special Agents ("SSAs") to five years. Before the Court is
defendant’s Motion to Dismiss in Part, Or, ln the Alternative, For Partial Summary
Judgment ("Def.’s Mot.") [Dkt. # ll]. This motion has two parts: (l) defendant has
moved for dismissal, or in the alternative for summary judgment, against the claims of
eighteen of the thirty-four plaintiffs; and (2) defendant has moved to dismiss all
plaintiffs’ disparate-impact claims for lack of subject matter jurisdiction Upon
consideration of the parties’ pleadings and the relevant law, the Court GRANTS IN
PART and DENIES IN PART defendant’s Motion for Partial Summary Judgment against
the specified plaintiffs and GRANTS defendant’s Motion to Dismiss in Part as to all
plaintiffs’ disparate-impact claims.
BACKGROUND
In 2004, the FBI announced a new policy called the Field Office Supervisory
Term Limit Policy ("the Policy"). Compl. fl 7 [Dkt. # l]; see also EC Dated 4/1/20()4
("Policy"), Def.’s Mot., Ex. A [Dkt. # ll-l]. The policy established a five-year term
limit to field positions held by GS-l4 SSAs. Compl. 111 7, 9; Policy at l-Z.l The Policy
stated that the term limit was imposed to ensure that SSAs obtained the FBI headquarters
experience necessary for career advancement. Policy at l. At the end of the term limit,
the Policy prohibited affected SSAs from retaining their current positions but provided
these supervisors with multiple career options. Compl. W l, 6, 9. These options
included: (l) applying for a promotion to a higher grade position at FBI headquarters in
Washington, DC or in the field; (2) accepting a lateral transfer or temporary duty
assignment at FBI headquarters; or (3) returning to investigative duties as a non-
supervisory agent. See Compl. 11 9; see also Policy at 3, 6-7.2
l Although the FBI announced the policy in April 2004, Policy at l, the FBI later
delayed its implementation until June 3, 2004. EC Dated 2/22/2006 ("2()06 Policy
Update"), Def.’s Mot., Ex. C at l [Dkt. # ll-3]. Further, the policy provided existing
SSAs with an additional grace period, as determined by a supervisor’s tenure. Compl. ‘ll
9; Policy at 2.
2 The FBI also notified all affected agents in writing approximately one year prior to
a term’s expiration and explained the available career options. Def.’s Statement Material
Facts Not in Dispute ("Def.’s Statement") 11 5 [Dkt. # ll]; 2006 Policy Update at 2. In
November 2008, the FBI amended the policy to extend the term limit to seven years.
2
When the FBI announced the policy in 2004, all thirty-four plaintiffs were serving
as GS-l4 SSAs at various FBI field offices and were over 40 years old. Compl. ‘[Hl 4, 6.
According to the defendant, eighteen of the thirty-four plaintiffs fall into one or more of
the following three categories:3
l. Identical Claims Dismissed or Pending in Related Actions
F our of the plaintiffs in this case were plaintiffs in two related actions, Allard v.
Hola’er, Civ. Action No. 10-2081 (D.D.C. filed Dec. 7, 2010) and Hasychak v. Holcler,
Civ. Action No. l l-2l35 (D.D.C. filed Nov. 30, 201 l). The complaints in Allard,
Hasychak, and this case are virtually identical. Compare Allovi``o Compl., with Hasychak
Compl., and Allara' Compl.; see also Mem. of P & A in Supp. of Def.’s Mot. to Dismiss
in Part or, in the Alternative, for Partial Summ. J. ("Def.’s Mem") at l0, 19 n.5 [Dkt. #
ll] (comparing language in complaints). In Allara’, plaintiff Kenneth Powers was
dismissed from the lawsuit on January l0, 2012 because his voluntary retirement did not
constitute an adverse employment action. See Allard v. Holaler, 840 F. Supp. 2d 269,
277-78 (D.D.C. 2012). Plaintiffs Robert Hart, Paul Sciolino, and Kenneth Soohoo were
plaintiffs in Hasychak. See Hasychak Compl. at 1. On March 20, 20 l2, all plaintiffs
filed a stipulation of dismissal with prejudice in both Allaral and Hasychak. See Stip. of
Dismissal [Allaral Dkt. # 30]; Stip. of Dismissal [Hasychak Dkt. # l4].
Compl. 1 10; Def.’s Statement jj 7.
3 These eighteen plaintiffs are Jeffrey Allovio, Elise Amico, Michael Carbonell, Joseph
Conli, Dwayne Gibson, John Gliatta, Robert Hart, Manuela Lieber, Philip Neilson,
Edward Nowicki, Michael O’Reilly, Kenneth Powers, Paul Sciolino, Larry Sellers,
Stephen Silvern, Ken Soohoo, John Stubing, and Steven Winters.
3
2. Failure to File Timely Civil Action after EEO Complaint
Plaintiffs Jeffrey Allovio, Elise Amico, John Gliatta, Robert Hart, Philip Nei1son,
Edward Nowicki, Larry Sellers, Stephen Silvern, John Stubing, and Steven Winters filed
EEG complaints based on the policy. See Def.’s Statement 11 10-13, 19-20, 24-25, 28-
29, 31-32, 37-38, 40-41, 44-45, 47-48. These complaints were forwarded to the
Department of Justice, which issued a Final Agency Decision informing these plaintiffs
of their right to file a civil action in United States District Court within ninety days of
receiving their respective notice. Ia’.4 The most recent of these DOJ Fina1Agency
Decisions was dated July 18, 2011. Ia’. 1 29. The current action was not filed until
October 19, 2011, over ninety days later. Compl. at 1.
Plaintiffs Dwayne Gibson and Michael O’Reilly failed to file an EEO complaint
based on the policy. See Dec1. of P. Sean Murphy ("Murphy Decl.") 11 4-5 [Dl477 U.S. 242, 248 (1986). A party opposing summary judgment "may not
rest upon the mere allegations . . . of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256 (citing Fed. R.
Civ. P. 56(e)). If and when the nonmoving party offers evidence in response to the
motion, that evidence "is to be believed, and all justifiable inferences are to be drawn in
[the non-movant’s] favor." Ia’. at 255 (internal citation omitted).
A court may also dismiss a complaint, or any portion of it, that does not fall within
5
the court’s subject-matter jurisdiction Fed. R. Civ. P. l2(b)(1). Where a motion to
dismiss under Rule 12(b)(1) makes a facial attack on the complaint, the court "must
accept as true all material allegations of the complaint, and must construe the complaint
in favor of the complaining party." Ora' v. Distrz``ct ofColumbz``a, 587 F.3d 1136, 1140
(D.C. Cir. 2009) (internal citation and quotation marks omitted). "Under Rule l2(b)(1),
the plaintiff bears the burden of establishing that the court has jurisdiction." Grana'
Lodge ofFraternal Order ofPolice v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001).
ANALYSIS
Defendant’s motion asks this Court to take two actions. First, defendants move to
dismiss or enter summary judgment against eighteen of the thirty-four plaintiffs for
precluded claims, untimely filings, and/or lack of adverse employment actions. Second,
defendants move to dismiss all plaintiffs’ disparate impact claims for lack of subject
matter jurisdiction. For the reasons stated below, the Court grants in part and denies in
part defendant’s motion for summary judgment against the eighteen specified plaintiffs
and grants defendant’s motion to dismiss plaintiffs disparate impact claims.
I. Defendant is Entitled to Partial Summary Judgment Against Fourteen of
Thirty-Four Plaintiffs
Defendant identifies three procedural errors that warrant summary judgment
against fourteen of the thirty-four plaintiffs.$ Because 1 must rely in part on evidence
outside of the pleadings to address this part of defendant’s motion, 1 will treat this part of
defendant’s motion as a motion for summary judgment. See Fed. R. Civ. P. 12(d); see
5 These plaintiffs are Carbonell, Conli, Gibson, Hart, Lieber, Nowicki, O’Reilly, Powers,
Sciolino, Sellers, Silvern, Soohoo, Stubing, and Winters.
6
also Martz'n v. Locke, 659 F. Supp. 2d 140, 144-45 (D.D.C. 2009) (converting motion to
dismiss into one for summary judgment).
A. Summary Judgment is Warranted Against Plaintiffs Whose Claims Have
Been Litigated in Previous Cases
First, summary judgment is warranted against the plaintiffs whose claims have
been aired in earlier cases before me. lt is a fundamental principle that dismissal with
prejudice bars a plaintiff from filing a new case based on the same claim, pursuant to the
principle of resjaa’z``cata. See Green Aviati``on Mgmt. C0., LLC v. Fed. Aviati``on Aa'min.,
676 F.3d 200, 204-05 (2012); see also 9 Ci-iARLEs ALAN WRIGHT & ARTHUR R. MiLLi-;R,
FEDi-:RAL PRACTICE & PRoCEDURE: CiviL §§ 2364, 2367 . Because plaintiffs Hart,
Sciolino, and Soohoo entered a dismissal with prejudice in the almost identical Hasychak
matter, their claims cannot be re-litigated here.
Similarly, under the doctrine of collateral estoppel, a party will be precluded from
renewing a claim when the same issue was contested in an earlier case, a court actually
and necessarily determined the issue, and preclusion would not work any unfairness to
the bound party. Martin v. Dep ’t of Justz``ce, 488 F..°)d 446,454 (D.C. Cir. 2007) (citing
Yamaha Corp. ofAmer. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992). In Allara’, 1
held that Powers’ age discrimination claim-identical to his claim in this case~
warranted dismissal because he had not suffered an adverse employment action. Allaral,
840 F. Supp. 2d at 277-78. Similarly, no unfaimess will befall Powers if 1 deny his
attempt to bring the same issue before this Court a second time. As such, Powers must be
dismissed from this matter.
B. Summary Judgment is Not Warranted Against Plaintiffs Who Allegedly
Failed to File Timely Civil Action after EEO Complaint
Defendant fails to present sufficient evidence of untimeliness to warrant summary
judgment as to several plaintiffs. As stated in the final agency decision letters sent to
these eleven plaintiffs, a person receiving a final agency decision on an EEO complaint
has ninety days after the receipt of the decision to file a civil action. See 29 C.F.R. §
l6l4.407(a); see also, e.g., Allovio Compl. Adjudication Letter, Def.’s Mot., Ex. D at 2
("[Y]ou have the right to file a civil action in the appropriate United States District Court
within 90 days of the date you receive this decision."). Defendant argues that "[e]levcn
plaintiffs in the instant case received a Final Agency Decision before July 22, 2011, and
therefore their civil complaints are time barred." Def.’s Mem. at 12.6 1 agree.
Ironically, defendant cites precedent from our Circuit that undercuts his argument.
See Def.’s Mem. at ll (citing Woodru]j”v. Peters, 482 F.3d 521 (D.C. Cir. 2007)). 1n
Wooa'raffv. Peters, the defendant argued that the plaintiff s disability discrimination
claim was untimely because the plaintiff had failed to file his complaint within 90 days of
receiving notice of the Final Agency Decision. Woodrajj‘, 482 F.3d at 525. The Court
rejected this argument because the defendant had failed to present evidence as to when
the plaintiff received the notice. Ia’. "[T]he burden of proof is on the party claiming the
deadline was missed,” and the defendant could not meet this burden by presenting only
the date the letter was sent. Id. in this case, the govemment likewise has presented
evidence of only the date the letter was issueal, not the date the letter was recei``vea’.
6 These eleven plaintiffs are Allovio, Amico, Gliatta, Hart, Lieber, Neilson, Nowicki,
Sellers, Silvem, Stubing, and Winters. Ia’.
Absent evidence of receipt, the govemment has failed to meet its burden to prove
untimeliness as to these plaintiffs.
As such, summary judgment must be denied with respect to plaintiffs Allovio,
Amico, Gliatta, and Neilson. The remaining plaintiffs against whom defendant alleges
untimeliness do not survive summary judgment for other reasons discussed below.
C. Summary Judgment is Warranted Against Plaintiffs Who Allegedly Failed
to File EEO Complaint
Defendant presents evidence that plaintiffs Gibson and O’Reilly failed to file an
EEO complaint prior to filing this lawsuit. See Murphy Decl. 11 4-5. "[A]ggrieved
persons who believe they have been discriminated against on the basis of . . . age . . .
must consult [an EEO] Counselor prior to filing a complaint in order to try to informally
resolve the matter." 29 C.F.R. § l614.105(a). Because the govemment presents
evidence that Gibson and O’Reilly failed to exhaust this administrative remedy prior to
filing this lawsuit, summary judgment against them is warranted. See Hami``lz‘on v.
Gei``thner, 666 F.3d 1344, 1349-50 (D.C. Cir. 2012) (affirming summary judgment against
plaintiff who failed to include claim in EEO complaint prior to filing lawsuit).
D. Summary Judgment is Warranted Against Plaintiffs Who Did Not Suffer
Adverse Employment Action
Defendants correctly observe that several plaintiffs did not experience adverse
employment actions warranting relief under the ADEA. An ADEA claim must
demonstrate two elements: (l) the plaintiff suffered an adverse employment action; and
(2) the action occurred because of the employee’s age. Baloch v. Kempthorne, 550 F.3d
1191, 1196 (D.C. Cir. 2008). Our Circuit has held that "an employee suffers an adverse
9
employment action if he experiences materially adverse consequences affecting the
terrns, conditions, or privileges of employment or future employment opportunities such
that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell,
306 F.3d 1127, 1131 (D.C. Cir. 2002) (internal citation omitted). Further, our Circuit has
elaborated that an adverse employment action is "a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits." Douglas v.
Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (internal citations and quotations omitted).
As 1 held in Allara’, a plaintiff did not suffer an adverse employment action when
he sought and received a promotion to a higher grade following the policy. Allara’, 840
F. Supp. 2d at 275 (citing Forkkio, 306 F.3d at 1131). 1n this case, because plaintiff
Sellers received a promotion to grade GS-15 before the expiration of his term limit and
retained that position until his retirement, he similarly has failed to demonstrate, as a
matter of law, that he suffered an adverse employment action.
1 also held in Allara’ that a plaintiff who retained his GS-14 grade and pay
following the policy did not suffer an adverse employment action. Allara’, 840 F. Supp.
2d. at 276. Like the plaintiff in Allard, plaintiff Conli received a lateral GS-14 position
after the policy was implemented; he subsequently was promoted to a GS-15 position and
later moved back to his current GS-14 position. See Def.’s Mem. at 16; see also Conli
Swom Statement, Def.’s Mot, Ex. G at 4-6. "A purely lateral transfer, that is, a transfer
that does not involve a demotion in form or substance, cannot rise to the level of a
materially adverse employment action." Brown v. Brody, 199 F.3d 446, 455-56 (D.C.
10
Cir. 1999). While Conli states that he felt unwelcome in his new positions, was
temporarily denied FBI equipment and work assignments, and believes that the position
changes contributed to his divorce, Conli Sworn Statement at 5-9, such unfortunate
circumstances do not rise to the level of a materially adverse employment action affecting
the terms, conditions, or privileges of employment. See Allard, 840 F. Supp. 2d at 275
(quoting Douglas, 559 F.3d at 552 and Sauvage v. Snow, 413 F. Supp. 2d 1289, 1298-99)
(M.D. Fla. 2005)).
Finally, plaintiffs who voluntarily retired from the FBI fail to demonstrate an
adverse employment action as a matter of law. "Resignations or retirements are
presumed to be voluntary," unless an employee can show that "a reasonable person in the
employee’s position would have felt compelled to resign under the circumstances."
Alz``otta v. Bair, 614 F.3d 556, 567 (D.C. Cir. 2010) (citations and internal quotation
marks omitted). "The voluntariness question . . . turns on things such as: did the person
receive information about what would happen in response to the choice? [W]as the
choice free from fraud or other misconduct‘? [D]id the person have an opportunity to say
no?" Ia’. at 566-67 (citations and internal quotation marks omitted).
Here, the retired plaintiffs have failed to demonstrate that their retirement was
involuntary. While plaintiffs may have faced a tough decision about whether to retire,
this tough decision surely does not amount to coercion. See Allarcl, 840 F. Supp. 2d at
278 (citing Keyes v. District ofColumbia, 372 F.3d 434, 439 (D.C. Cir. 2004)). The FBI
offered altemative career options to employees affected by the policy, see Policy at 6-7,
and plaintiffs have put forth no evidence that the FBI engaged in "fraud or other
11
misconduct" that affected their resignation decision. Absent evidence that plaintiffs truly
had "no alternative but to accept" resignation, summary judgment must be granted as to
plaintiffs Carbonell, Hart, Lieber, Nowicki, Silvern, Stubing, and Winters. Keyes, 372
F.3d ai 439 (quoting schultz v. U.S. Navy, 810 F.zd 1133, 1136 (Fed. Cir. 1987)).
II. Plaintiffs’ Disparate Impact Claims Are Dismissed for Lack of Subject
Matter Jurisdiction
While not specific as to types of claims, plaintiffs’ complaint appears to allege
both disparate impact and disparate treatment discrimination claims. Compare Compl. 1
8 ("the term limit policy would have a disproportionate impact on Agents who were more
than 40 years of age."), with Compl. 1 9 ("Because the F B1 knew that this policy would
adversely effect [sic] only Agents who were more than 40 years of age, the decision to
implement it constitutes intentional discrimination."). Defendant moves to dismiss
plaintiffs’ disparate impact claims, to the extent they exist, for lack of subject matter
jurisdiction See Def.’s Mem. at 18.
1n Allard, 1 held that the ADEA did not authorize disparate impact claims against
federal employers 840 F. Supp. at 278-80. Because plaintiffs’ complaint in this case is
identical in all material respects to the complaint in Allaral, 1 find no reason to depart
from my holding in that case. Accordingly, as in Allard, plaintiffs’ disparate impact
claims cannot stand.
CONCLUSION
For all of the foregoing reasons, the Court GRANTS IN PART and DENIES 1N
PART defendant’s Motion for Partial Summary Judgment against the specified plaintiffs
12
and GRANTS defendant’s Motion to Dismiss in Part as to the plaintiffs’ disparate-impact
claims. An Order consistent with this decision accompanies this Memorandum Opinion.
.
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RICHARD JQ§&)N
United States District Judge