United States District Court, E.D. Virginia, Alexandria Division
Robert M. Miller, Plaintiff,
MARTfN J. GRUENBERG, Chairman, Federal Deposit Insurance Corp., Defendant.
O'Grady, United States District Triage
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
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.
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. 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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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).
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)).
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).
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. 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 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 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