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Miller v. Gruenberg

United States District Court, E.D. Virginia, Alexandria Division

March 31, 2017

Robert M. Miller, Plaintiff,
v.
MARTfN J. GRUENBERG, Chairman, Federal Deposit Insurance Corp., Defendant.

          MEMORANDUM OPINION

          Liam O'Grady, United States District Triage

         This matter comes before the Court on Defendant Martin Gruenberg's Motion to Dismiss Plaintiffs Second Amended Complaint ("SAC") for lack of subject matter jurisdiction and for failure to state a claim. Dkt. No. 23. Defendant argues that the Court lacks jurisdiction over certain claims in the SAC and that Plaintiff fails to set forth a claim on which relief can be granted on the remainder of his numerous express and implied causes of action. Plaintiff Robert Miller, proceeding pro se, filed the SAC against his former employer, the Federal Deposit Insurance Corporation ("FDIC"), alleging violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Civil Service Reform Act ("CSRA"). Specifically, Plaintiff contends that FDIC officials discriminated against him through non-selection for a number of promotions and special duties, because of his age, race, sex, and disabilities. Plaintiff also contends that he was retaliated against for prior protected Equal Employment Opportunity activity and that he was subject to a hostile work environment. For the reasons discussed below, the Court GRANTS Defendant's Motion and the Second Amended Complaint is DISMISSED WITH PREJUDICE.

         I. Background

         A. Factual History

         Plaintiff is a Caucasian male, born in 1965, and a disabled veteran with a 60 percent compensable disability rating from the Veterans Administration. Plaintiff has a doctorate degree in Economics. Plaintiff was hired by the FDIC on March 10, 2008 as an Economic Analyst, Grade CG-9. He was subsequently promoted to CG-11 in March 2008 and CG-12 in March 2010. Plaintiff received satisfactory performance reviews during the years at issue in the complaint including a rating of IV (with V being highest) on 2009 and 2010 performance reviews.

         Plaintiff applied for one of a number of new positions as a Financial Economist listed by Defendant in late 2011. The posted vacancies were Grade 12, Plaintiffs current Grade, but included annual promotions to Grades 13 and 14 upon satisfactory job performance. The positions required the submission of a writing sample. The listing was concomitant with the American Economics Association ("AEA") meetings held January 5-8. 2012.[1] Plaintiff avers that it is common knowledge among AEA participants that a "writing sample" is equivalent to a completed research paper of publishable quality. The position listing did not mention that candidates would be required to present the results of research during the interview process. Plaintiff applied for the vacancies on or before January 17, 2012. On January 20, 2012, Plaintiff received an email from USAJobs stating that he was referred to the selecting official as "Best Qualified" because of his disabled veteran status.

         On January 24, 2012, Plaintiff received a telephone call from Cathy Wright, an administrative assistant responsible for organizing interview times and travel arrangements for applicants to the positions. Plaintiff avers that Wright did not identify herself as an administrative assistant. She informed Plaintiff that he would be required to present the results of a "recent" research paper on January 27, 2012 at 9:00 a.m. and that a copy of the presentation was due to her no later than noon on the day before the interview. Wright also requested Plaintiffs travel itinerary.

         Plaintiff did not have a presentation prepared based on recent research. He endeavored to no avail to assemble a new presentation and prepared to email Wright on January 25, 2012 to inform her that he needed additional time. Wright called Plaintiff that morning and slated that it would not be possible to give Plaintiff additional time and that it was pointless for him to come to the interview if he was not prepared to present. Wright asked Plaintiff for a letter of withdrawal and Plaintiff wrote such a letter. The FDIC continued to interview candidates for the positions up to one month after Plaintiffs scheduled interview and ultimately selected three candidates for the positions who were substantially younger than Plaintiff.

         Plaintiff alleges that die reason he was treated in this fashion by Wright was in retaliation for Plaintiffs prior employment-related conduct and Plaintiffs subsequent grievance filings. Specifically, in early 2011, a former college intern reported to Plaintiffs manager, Shayna Olesiuk, that Plaintiff would visit her desk and stare at her legs when she wore a dress to the office and made comments of a sexual nature during her employment. The intern made the complaint after she left the FDIC. Olesiuk conducted an investigation of these claims which included consultation with other FDIC employees. Through the investigation, another student intern identified three instances in which Plaintiffs comments of a sexual nature made her feel uncomfortable. The same day that the second intern informed Olesiuk of the comments, Olesiuk changed the classification of a Grade 13 position to which Plaintiff had sought promotion to a Grade 9 position. The second intern followed up with Olesiuk on her claims on April 13, 2011. Contemporaneously, Olesiuk cancelled Plaintiffs participation in a presentation to an outside organization.

         On April 18, 2011, Olesiuk informed Plaintiff that she received reports of harassment and would be conducting an investigation which could result in disciplinary action. One week later. Olesiuk, along with another FDIC official, Patrick McKcnna, met with Plaintiff and his union representative. Plaintiff denied all of the allegations raised during the interview. As a result of the interview, Olesiuk issued plaintiff a Letter of Warning ("LOW"), an informal reprimand, on May 5, 2011. Misunderstanding the nature of the reprimand. Plaintiff asked Olesiuk whether the LOW was formal or informal, to which Olesiuk directed Plaintiff to attend a course on tactful communication which overlapped with a presentation Plaintiff was scheduled to give.

         Plaintiff met with Olesiuk on May 26, 2011 for a mentorship meeting. During the meeting, Plaintiff asked Olesiuk if the vacant position was reclassified to Grade 9 instead of Grade 13 because of the allegations against Plaintiff Olesiuk replied that it was "in part" and that management was hesitant to allow Plaintiff to perform future presentations because of concern about what Plaintiff might say.

         Sometime shortly after the meeting, Plaintiff filed a grievance under the Union Collective Bargaining Agreement ("CBA") claiming that Olesiuk and other unnamed employees conspired to take tangible employment actions without conducting a proper investigation. The grievance process provided for up to three "steps" of review. Olesiuk acted as the Step 1 grievance official which Plaintiff believes to be a violation of Merit System Protection Board ("MPSB") policy. Olesiuk was assisted by Barbara Pfaffenberger who reported directly to Joy Crosser, one of the unidentified parties in Plaintiffs grievance. Following a hearing, on July 14, 2011, Olesiuk denied Plaintiffs grievance. Plaintiff appealed to a Step Two review. Kathy Kaiser, an FDIC employee who was also a subject of the grievance conducted die review. Kaiser affirmed the Step 1 findings. Plaintiff requested a Step 3 review. Kaiser designated Richard Brown as the Step 3 official, Plaintiff objected and the Step 3 Review was delegated to Deputy Director Diane Ellis. On October 6, 2011 Ellis denied Plaintiffs claims for relief. On October 24, 2011, Plaintiff initiated informal EEO counseling alleging discrimination because of sex in the harassment investigation and grievance process. Upon advice of the counselor that the claim would be dismissed, Plaintiff withdrew the complaint on November 2, 2011. Plaintiff subsequently filed suit in the Northern District of California against the FD1C for conduct relating to the 2011 grievance. The claim was dismissed by the District Court for failure to exhaust EEO remedies and affirmed by the Ninth Circuit.

         At the end of 2011, Kaiser and Olesiuk did not publish three of Plaintiff s research papers completed during the year. On January 13, 2012, Plaintiff submitted a request for a desk audit which would have enabled Plaintiff to receive additional compensation even if his grade level remained unchanged. On January 27, 2012, Olesiuk determined that the position was appropriately classified and the FDIC denied the request for reclassification. Plaintiff again sought EEO counseling on February 28, 2012. Plaintiffs claims were not resolved within 30 days and he was issued a formal right to file a complaint. Plaintiff filed an appeal with the EEOC of the FDIC's final decision on his discrimination allegations brought pursuant to the Rehabilitation Act and Age Discrimination in Employment Act. On March 29, 2016, the EEOC affirmed the Agency's decision.

         Since Plaintiffs initial grievance, Plaintiff has received a passing rating of III (out of V) on his 2011-2015 performance evaluations-one Grade lower than his 2009 and 2010 reviews. Plaintiff claims that his rating reduction from IV to III was made in retaliation for Plaintiffs grievance. Plaintiff further alleges that he was turned down for: duty as a Corporate Employee Program Facilitator in 2012 and 2013, despite serving in that role from 2008 through 2011; a Financial Analyst position in 2014; and participation in the FDIC Executive Potential Program ("FPP") a leadership training program. Plaintiff also avers that he has been generally denied promotion to numerous Grade 13 positions, denied the opportunity to participate in leadership and facilitation programs, and not considered for awards.

         In January 2015, Plaintiff applied for a position substantially similar to the 2011 Financial Economist vacancy. Plaintiff was again asked to present "recent" research. Plaintiff advised the selecting official that his most recent published work was still from 2004. The selecting official advised Plaintiff that he could present the 2004 paper and also briefly present his ongoing research. Plaintiff withdrew from this position after receiving and accepting a different offer of work at a Grade 13/14 level.

         In addition to his claims for retaliation. Plaintiff alleges that the FDIC's conduct over a five year period created a hostile and abusive working environment. Specifically, Plaintiff alleges that he did not receive any detailed information about the sexual harassment claims made against him and that FDIC attorneys suborned perjury during the investigation for which they were not reprimanded. Furthermore, Plaintiff avers that Defendant promoted some of the individuals involved in Plaintiffs review process; the individuals who reviewed Plaintiffs claims were mostly women, many of tbem were minority women, and several were minority men; the FDIC conducts training and events relating to certain diversity groups while excluding others including Catholics, Mormons, Irish, and Italians; and the persons involved in Plaintiffs review process are Democrats and/or political liberals. These acts left Plaintiff in constant fear of losing his job from April 2011 onward and rendered him unable to interact with women at work.

         Plaintiff also brings two claims against the Defendant alleging that he was discriminated against when his union, the National Treasury Employees Union ("NTEU"), failed to pursue arbitration against the FDIC on his behalf.

         B. Procedural History

         Plaintiff fded the Complaint in this matter on July 5, 2016. Dkt.No. 1. Defendant moved to dismiss for lack of subject matter jurisdiction on September 6, 2016. Dkt. No. 8. The Court granted the motion and dismissed the Complaint without prejudice on October 14, 2016. Dkt. No. 18. During the hearing, the Court advised Plaintiff that he needed to plead more than conclusory allegations that the reason he suffered the alleged adverse employment actions was because of Defendant's desire to discriminate against him. On November 14, 2016, Plaintiff fded a First Amended Complaint ("FAC"). Dkt. No. 19. Before Defendant could respond to the FAC, Plaintiff fded, without leave, a Second Amended Complaint ("SAC") on December 5, 2016. Dkt. No. 22. Defendant moved to dismiss the SAC for failure to state a claim and lack of jurisdiction on December 39, 2016. Dkt. No. 23.

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(1) permits the defendant to move for dismissal of a claim when the court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Thecourtmust dismiss the action if it determines at any time that it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3). Plaintiff bears the burden to establish that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co.. 166 F.3d 642, 647 (4th Cir. 1999). A district court should grant a Rule 12(b)(1) motion if the material jurisdictional facts are known and the moving party is entitled to prevail as a matter of law. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         The Court must also dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) unless it contains sufficient factual information to "state a claim to relief that is plausible on its face." Ml Ml Corp. v. Twombly, 550 U.S. 544, 550 (2007). A motion to dismiss pursuant to Rule 12(b)(6) must be considered in combination with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief" Fed.R.Civ.P. 8(a)(2), so as to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555. While "detailed factual allegations" are not required, Rule 8 does demand that a plaintiff provide more than mere labels and conclusions stating that the plaintiff is entitled to relief. Id. Because a Rule 12(b)(6) motion tests the sufficiency of a complaint without resolving factual disputes, a district court "'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff.'" Kensington Volunteer Fire Dep't v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)).

         In order to survive a motion to dismiss on a discrimination claim under either Title VII or the ADA, the plaintiff must allege facts establishing the plausibility of Uie alleged discrimination. Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) aff'd, 132 S.Ct. 1327 (2012). The plaintiff need not plead facts sufficient to constitute a prima facie case of discrimination under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). Flowever, "courts may look to the requirements of a prima facie case as a guide in assessing the plausibility of a plaintiffs claim for relief." Craft v. Fairfax County Government, 2016 WL i 643433 at *4 (E.D. Va. April 26, 2016); see a/so McCleary-Evam v. Maryland Dept. of Tram., 780 F.3d 582, 585 (4th Cir. 2015) (applying prima facie case as guide in motion to dismiss); Coleman, 626 F.3d at 190-91 (same).

         III. Discussion

         Over the course of the 90-page SAC, Plaintiff sets forth a number of claims which he believes he has adequately exhausted and for which he has stated a claim for relief.[2] The details of the causes of action are not clearly delineated. Because Plaintiff filed the SAC pro se, the memorandum liberally construes the claims to include:

• the May 29, 2011 employment grievance terminated by the NTEU;
• the May 11, 2012 discrimination by NTEU for failing to pursue arbitration relating to PMR grievance;
• EEO Claim #: FDICEO12-027, discrimination in the form of a non-selection relating to withdrawal from 2011 Grade 12 Financial Economist position;
• FDICEO-13-013 and FDICEO-14-017, discrimination in the form of an undeserved 2012 and 2013 performance evaluations[3] and nonselection for a work assignment;
• FD1CEO-13-046, discrimination in the form of denying Plaintiff of key duties and negatively impacting 2013 performance evaluation and not selecting Plaintiff for a ...

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