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Stevens v. Holder

United States District Court, E.D. Virginia

August 16, 2013

ROBERT J. STEVENS, et al., Plaintiffs,
ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, et al., Defendants

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[Copyrighted Material Omitted]

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For Robert J. Stevens, Katherine A. Hayek, Plaintiffs: Jacob Madison Small, John Thomas Spiggle, The Spiggle Law Firm PLLC, Arlington, VA.

For Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America, Defendant: David Moskowitz, Stephen Obermeier, LEAD ATTORNEYS, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA.


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Gerald Bruce Lee, United States District Judge.

THIS MATTER is before the Court on Defendant's Motion to Dismiss and Motion for Summary Judgment. (Docs. 37, 38.) This case concerns claims by two former Federal Bureau of Investigation (" FBI" ) trainees who were terminated from the FBI Academy. Plaintiffs allege their termination from the FBI Academy resulted from violations of their constitutional rights of privacy and due process, and also allege violations of the Fair Labor Standards Act (" FLSA" ) resulting from non-compensation for certain work-related tasks.

Defendant's Motions present three issues. The first issue is whether the Government violated Plaintiffs' substantive due process rights in that the FBI's decision to terminate Plaintiffs after learning of their relationship violated a Fifth Amendment right to engage in a personal romantic relationship with one another at work. The second issue is whether Plaintiffs state an equal protection claim on the grounds that the FBI terminated Plaintiffs for conduct code violations yet treated differently other trainees who violated conduct regulations. The third issue is whether Plaintiffs state a claim pursuant to the FLSA by alleging that the FBI refused to compensate Plaintiffs for certain tasks performed during their time at the FBI Academy.

The Court grants Defendant's Motions for three reasons. First, the Fifth Amendment does not provide a fundamental right to engage in a non-marital, non-familial, non-sexual personal relationship, thus the Government's rules affecting personal relationship conduct on government property does not violate substantive due process. Second, Plaintiffs fail to plead sufficient facts demonstrating that other individuals in receipt of different treatment were similarly situated, resulting in an equal protection violation. Furthermore, Plaintiffs fail to plead facts demonstrating that any differential treatment was not justified, in light of the fact that the Government may promulgate rules limiting or proscribing employee conduct. Third, Plaintiffs' FLSA claim fails because the tasks at issue were not either " productive work" nor assignments regularly scheduled in advance of the administrative workweek, requirements for FLSA violations in the context of entry-level employees.


Plaintiffs Robert Stephens and Katherine Hayek bring this action against Eric Holder, Jr. in his official capacity as Attorney General, concerning a series of events occurring while the Plaintiffs were FBI trainees. Plaintiffs entered the FBI New Agent Training (" NAT" ) program in Quantico, Virginia on July 17, 2011. (2d Am. Compl. ¶ ¶ 19-20, Doc. 32.) Special Agent (SA) Michael Robinson and Special Supervisory Agent (SSA) Derrick Edmond conducted orientation for the New Agent Class (NAC), during which time the trainees

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completed personnel documents. ( Id. ¶ ¶ 21-22.)

At the time they entered the FBI Academy, Plaintiffs were married, yet separated from their respective spouses. On August 10, 2010, Mr. Stevens separated from his wife, although the divorce was not final until December 31, 2011. ( Id. ¶ 17.) Ms. Hayek separated from her husband on July 15, 2011, with their divorce becoming finalized on October 4, 2011. ( Id. ¶ 18.) The parties were terminated from the FBI Academy in September 2011. Plaintiffs were legally married, yet separated, during the time period relevant to their claims.

Plaintiffs became acquainted on July 29, 2011 and developed a romantic relationship. ( Id. ¶ 25.) Plaintiffs did not hide their relationship, believing it was not unlawful or inconsistent with FBI policy. ( Id. ¶ 26.) During their time as NATs, Plaintiffs resided in dormitories on FBI property. ( Id. ¶ 27.) On September 16, 2011, SA Robinson and SA Christine O'Neil searched Ms. Hayek's dorm room, and the ensuing report reported finding men's jeans and deodorant in Ms. Hayek's room. ( Id. ¶ ¶ 31-32.) The report also indicated that SA Robinson and SA O'Neil reported their findings to SSA Edmond. ( Id. ¶ 33.)

Plaintiffs allege that in late September, the FBI interviewed Plaintiffs and other trainees about Plaintiffs' relationship. ( Id. ¶ 34.) SSA Edmond, joined by SSA Thomas Bailey, SSA Steven Hayes, and SA Robinson, held separate interviews with Plaintiffs to determine whether Plaintiffs violated the honor code by cheating on exams. ( Id. ¶ ¶ 35-36.) In each meeting, the questions would eventually shift from the exams to Plaintiffs' relationship. ( Id. ¶ ¶ 37-40.) In discussing Plaintiffs' relationship, SSA Edmond allegedly approached the subject of Plaintiffs' marital status and told Mr. Stevens to do some soul searching. ( Id. ¶ ¶ 40-41.)

In a second meeting with Mr. Stevens the following day, September 27, 2011, SSA Edmond cleared Mr. Stevens of the honor code violation charge, but further inquired as to the nature of Plaintiffs' relationship. ( Id. ¶ ¶ 43-46.) The same day, a similar interaction occurred between SSA Edmond and Ms. Hayek. ( Id. ¶ 47.) SSA Edmond expressed his disapproval for extramarital affairs, allegedly telling Ms. Hayek that Plaintiffs' relationship was a " poor choice." ( Id. ¶ ¶ 48-49.) Later that evening, SSA Edmond met with Plaintiffs individually to inform then that the FBI would conduct a " Suitability Review" to determine Plaintiffs' fitness for duty as FBI agents. ( Id. ¶ 51.) Plaintiffs received a " Counseling Statement" alleging that they violated curfew, and lacked integrity and good judgment in entering into a personal relationship. ( Id. ¶ 53.) SSA Edmond subsequently conducted interviews with other trainees on the topic of Plaintiffs' relationship. ( Id. ¶ ¶ 54-57.)

Plaintiffs allege SSA Edmond used the curfew violations as pretext for terminating Plaintiffs for their relationship. ( Id. ¶ 60.) SSA Edmond, SA Robinson, and Acting Unit Chief (AUC) Melinda Casey informed Mr. Stevens that they completed the Suitability Review and found him unsuitable for duty. ( Id. ¶ 60.) AUC Casey indicated to Mr. Stevens that he was terminated for more than just a curfew violation; Plaintiffs allege that she implied that real reason was the relationship with Ms. Hayek. [1] ( Id. ¶ 64.) Ms. Hayek was terminated the same day for a curfew violation. ( Id. ¶ 66.) When Ms. Hayek protested the

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finding that she broke curfew, AUC Casey replied that Ms. Hayek was terminated for allowing Mr. Stevens to break curfew. ( Id. ¶ ¶ 67-68.) A written " Counseling Record," summarizing the FBI's Suitability Review, stated that Plaintiffs failed to demonstrate three " suitability dimensions" : emotional maturity, integrity, and judgment. ( Id. ¶ 69.) Plaintiffs allege that these infractions arose from their personal relationship, not the curfew violation. ( Id. ) Mr. Stevens's formal termination form, dated September 30, 2011, noted that Mr. Stevens also failed the suitability requirement for " conscientiousness." ( Id. ¶ 70.)

On September 30, 2011, [2] an unknown individual allegedly sent letters to Plaintiffs' respective estranged spouses disclosing Plaintiffs' sexual relationship at the FBI Academy. ( Id. ¶ ¶ 86-88.) Purportedly sent by a concerned NAT at the FBI Academy, the letters informing Plaintiffs' estranged spouses that Plaintiffs were violating a strict rule prohibiting sexual relations on government property and were " sleep[ing] together almost every night." ( Id. ¶ ¶ 89-92.) The letters further stated that Plaintiffs violated rules concerning sex on government property and violated the pillars of the FBI. ( Id. ¶ ¶ 93-94.) Plaintiffs dispute the truth of the letters' contents. ( See id. ¶ ¶ 92-96.)

Plaintiffs claim that their termination on suitability grounds has damaged their ability to find other meaningful employment opportunities. ( Id. ¶ 100.) Mr. Stevens is allegedly underemployed now, having previously been unemployed for eleven months after leaving the FBI Academy, as a result of the FBI dismissal and having to disclose the circumstances surrounding his termination. ( Id. ¶ ¶ 101-03.) Two potential employers informed Ms. Hayek that she was denied employment solely because of her termination from the FBI. ( Id. ¶ 104.) However, she is now employed with the Defense Contract Audit Agency, a hire that was delayed while the agency consulted the FBI regarding her termination. ( Id. ¶ ¶ 105-06.) Plaintiffs allege that they both seek work in fields where potential employers will likely to use the FBI Suitability Review to make their own security-clearance decisions, thus creating a unique harm by the FBI's decision. ( Id. ¶ 107.) Plaintiffs further maintain that the poison-pen letters caused them harm during their respective divorce proceedings through a loss of bargaining power. ( Id. ¶ 108.)

Unrelated to Plaintiffs' personal relationship and subsequent termination, Plaintiffs further alleged that they were eligible for and entitled to overtime compensation that they did not receive while training at the FBI Academy. ( Id. ¶ 109.) The NATs received a take-home exam on Friday, September 16, 2011, to complete during the ensuing weekend. ( Id. ¶ 110.) Plaintiffs allege that their supervisors intentionally extended deadlines to Tuesday to fall within FSLA requirements, but kept Plaintiffs fully occupied during the workday with other assignments so that Plaintiffs effectively could not complete the assignment during working hours. ( Id. ¶ ¶ 114-16.) Plaintiffs also allege that the NATs were regularly required to spend an extra hour cleaning and preparing gym equipment three days per week, and their supervisors ordered all NATs to list only forty hours of work on their timesheets. ( Id. ¶ ¶ 117-19.)

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On February 25, 2012, Mr. Stevens filed a formal Complaint of Discrimination with the Department of Justice, alleging that the FBI discriminated against him based on his marital status. (Def.'s Ex. 5, Doc. 46-1; Def.'s Ex. 3 at 1, Doc. No. 39-3.) The DOJ dismissed the complaint on June 14, 2012, finding that federal Equal Employment Opportunity laws and policies did not protect Stevens' marital status. (Def.'s Mem. at 6; Def.'s Ex. 3 at 1.) On appeal, the Equal Employment Opportunity Commission within the Office of Federal Operations found that the DOJ correctly dismissed Stevens' discrimination claims but remanded for a full investigation regarding Plaintiff's reprisal claims. (Def.'s Ex. 3 at 2-3.)

Plaintiffs filed this action on October 1, 2012, seeking injunctive relief and compensatory and punitive damages for constitutional and statutory violations arising out of their employment termination and unpaid overtime compensation. Plaintiffs filed an Amended Complaint on January 11, 2013, alleging seven counts, premised on a right to privacy, due process, the Privacy Act, unlawful search in violation of the Fourth Amendment, and the FLSA. ( See Am. Compl. ¶ ¶ 149-88, Doc. 32.) The Amended Complaint named as defendants the FBI and seven FBI employees in their individual capacities: SA Michael Robinson, Training Division Assistant Director Thomas Browne, SSA Derrick Edmond, AUC Melinda Casey, SA Christine O'Neil, and the unnamed individual who sent the poison-pen letters. [3] ( See id. at 1.) On April 19, 2013, the Court dismissed all counts for failure to state a claim. (Doc. 31.)

Plaintiffs filed their Second Amended Complaint on May 10, 2013, this time naming only Attorney General Holder, in his official capacity, and John Doe as defendants. Plaintiffs re-allege many of the same facts, although with less detail in certain instances than the First Amended Complaint. The Second Amended Complaint presents five counts. The first two counts relate to Plaintiffs termination in violation of substantive due process and equal protection of their Fifth Amendment right to privacy. [4] The third and fourth counts are against John Doe in relation to the " poison-pen letters," seeking relief for a violation of procedural due process and defamation. The fifth count, in asserting the FLSA claim, seeks relief for working uncompensated overtime hours. ( See 2d Am. Compl. ¶ ¶ 120-51.)

The Government filed this Motion to Dismiss and Motion for Summary Judgment on May 24, 2013. (Docs. 37, 38.) The Government seeks dismissal for failure to state a claim on Counts I, II, and V, alleged against the FBI. Additionally, the Government seeks summary judgment on Count I, the substantive due process claim, based not only on the contents of FBI regulations, but also because the Second Amended Complaint " purposefully scrubbed" the allegations regarding the FBI rules and procedures governing curfew and prohibiting students from sleeping in the same dorm room. (Def.'s Mem. at 10.) This fact, the Government argues, is not in dispute because it is integral to the Second Amended Complaint and the facts concerning these rules are beyond dispute

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based on the allegations in the previous complaint, admissions during prior oral argument, and the dismissal of the First Amended Complaint. ( Id. )


A. 12(B)(6) Motion to Dismiss Standard of Review

A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) should be granted unless the complaint " states a plausible claim for relief" under Rule 8(a). Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). In considering a Rule 12(b)(6) motion, the Court " must accept as true all of the factual allegations contained in the complaint," drawing " all reasonable inferences" in the plaintiff's favor. E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted). No such assumption of truth is afforded to those " naked assertions" and " unadorned conclusory allegations" devoid of " factual enhancement." Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (citations omitted). Nor is the court obligated to assume the veracity of the legal conclusions drawn from the facts alleged. Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir. 2008) (citing Dist. 28, United Mine Workers of Am., Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1979)). In addition to the complaint, the Court also examines " documents incorporated into the complaint by reference," as well as those matters properly subject to judicial notice. Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013) (citations omitted); Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 176 (4th Cir. 2009) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)).

The complaint must contain sufficient factual allegations, taken as true, " to raise a right to relief above the speculative level" and " nudge [the] claims across the line from conceivable to plausible." Vitol, 708 F.3d at 543 (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The facial plausibility standard requires pleading of " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Clatterbuck, 708 F.3d at 554 (quoting Iqbal, 556 U.S. at 678). The plausibility requirement imposes not a probability requirement but rather a mandate that a plaintiff " demonstrate more than 'a sheer possibility that a defendant has acted unlawfully.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Thus, in order to survive a Rule 12(b)(6) motion to dismiss, the complaint must present sufficient non-conclusory factual allegations to support reasonable inferences of the plaintiff's entitlement to relief and the defendant's liability for the unlawful act or omission alleged. See id. at 196-97 (citing Iqbal, 556 U.S. at 678-79 and Gooden v. Howard Cnty., Md., 954 F.2d 960, 969-70 (4th Cir. 1992) (en banc)).

B. Summary Judgment Standard of Review

Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is ...

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