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Tweed v. Sessions

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

July 18, 2018

TIMOTHY E. TWEED, Plaintiff,
v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Defendant.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Timothy E. Tweed ("Tweed" or "plaintiff), a former Firearms Specialist employed by the Federal Bureau of Investigation ("FBI"), in its Quantico, Virginia facility, has filed a four-count Complaint prose against Jefferson B. Sessions, III, the Attorney General of the United States, ("Sessions" or "defendant") in his official capacity, in which plaintiff alleges to have been the victim of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") based on his gender (male) and religion (Pentecostal Christian) and on retaliation for engaging in protected EEO activity (Counts 1 and 2, respectively).[1] Compl. [Dkt. No. 1] ¶¶ 91-100. The Complaint also alleges in Count 3 that defendant violated the Religious Restoration Act, 42 U.S.C. § 2000bb ("RFRA"), Id. at ¶¶ 101-02, and in Count 4 that defendant inflicted emotional distress and tortiously interfered with prospective economic advantage in violation of Virginia state law, Id. at ¶¶ 103-10.

         For relief, plaintiff seeks $10 million to compensate him for lost wages, accrued leave time, prejudgment interest and an order declaring that defendant violated Title VII and permanently enjoining him from further discriminatory and retaliatory practices. Id. at ¶¶l 10 (a)-(b).

         Before the Court are defendant's Motions to Dismiss for Lack of Jurisdiction and for Failure to State a Claim [Dkt. Nos. 11 and 12] ("Def. Mtns. Dismiss"), to which plaintiff has filed an opposition [Dkt. No. 21] ("PL Opp'n"). Defendant has filed a reply brief [Dkt. No. 27] ("Def. Reply"), and the Court finds that oral argument will not assist the decisional process. For the reasons that follow, defendant's motions will be granted and this civil action will be dismissed.[2]

         I. BACKGROUND

         The following factual findings are based on the facts contained in the Complaint and the 41 exhibits attached to it and supplemental facts by plaintiff, as well as documents attached to defendant's motions to dismiss.[3]

         A. Plaintiffs Employment History

         Plaintiff was hired by the FBI as an Investigative Specialist on October 16, 2005. Compl. [Dkt. No. 1] ¶ 25; Ex. C [Dkt. No. 1-4] 1. After serving as an Intelligence Analyst in the FBI's Louisville, Kentucky field office, plaintiff was assigned to the Laboratory Division's ("LD") Firearms/Toolmarks Unit ("FTU") as a Firearm Specialist on December 20, 2009. Compl. [Dkt. No. 1] ¶¶ 26-28; Ex. C [Dkt. No. 1-4] 1. As a Firearm Specialist, he was responsible for the receipt, inventory, and destruction of firearms the FBI obtained from forfeiture, abandonment, court-ordered destruction, donation, interagency transfer, or which the FBI had purchased. Ex. T [Dkt. No. 1-21] 3. To track the receipt of these firearms, the FTU uses the Reference Firearms Collection ("RFC") database in which every firearm the FTU receives is assigned a Reference Identification number ("RID") to account for its receipt and status. Id.

         Heather Seubert ("Seubert") became plaintiffs supervisor in 2010. Compl. [Dkt. No. 1] ¶ 30. Plaintiff had previously been rated as "Excellent" in his Performance Appraisal Report ("PAR") for 2010; however, after Seubert became his supervisor, his 2011 PAR rating was reduced to "Successful" and his 2012 PAR was further reduced to "Minimally Successful." Id. ¶¶ 40-41, 43; Ex. KK [Dkt. No. 1-38] 4. Seubert told plaintiff that his 2011 rating was lowered because he had not destroyed "firearm boxes and sleeves," as required, Compl. [Dkt. No. 1] ¶ 41, and his 2012 PAR was lowered due to his "consistent resistance to; [sic] document his workflow process, provide hard numbers concerning the current status of existing weapons, allow others to help him perform his job to help decrease the accumulating backlog of inventoried weapons, and clean and organize his workspace, fostered discord within the unit [sic]," Ex. F [Dkt. No. 1-7] 3. Although plaintiff was not placed on a performance improvement plan ("PIP"), after Seubert consulted with upper management and human resources, the decision was made to outline specific tasks in his "2012 PAR which, if not completed, would trigger [him] being placed on a PIP." Id.

         On January 27, 2013, plaintiff was "involuntarily transferred" from the FTU to a temporary duty assignment in the Laboratory Planning and Budget Unit ("PBU"). Compl. [Dkt. No. 1] ¶ 46. The pleadings characterize that transfer as being based on Seubert having "ongoing challenges" supervising plaintiff. Ex. F [Dkt. No. 1-7] 4. On April 17, 2013, the assignment was made permanent. Ex. O [Dkt. No. 1-16] 1-2. Although plaintiff cites this transfer as an example of an adverse employment action, this change in position did not impact his "current grade or pay" because both positions were at the GS-11 level. Id. After his transfer, Seubert selected John B. Webb ("Webb"), who was then the Reference Firearms Collection Program Manager, to oversee plaintiffs Firearms Specialist duties and rotated additional FTU employees to assist him with the daily responsibilities of that unit.[4] Ex. T [Dkt. No. 1-21] 2-3.

         To perform his duties, Webb needed to clean the disposition suite to arrange for an organized work area for FTU personnel and to conduct an audit of the RFC database to account for the number and status of firearms. Id. at 3. The audit, which required hundreds of hours of extensive work, was completed on April 24, 2013 and revealed no account for 14 firearms which had been under plaintiffs control. Compl. [Dkt. No. 1] ¶ 60; Ex. T [Dkt. No. 1-21] 1-9. In addition, there were concerns about over 400 firearms not having been properly cataloged. Id. The results of the audit were referred to the FBI's Inspection Division ("INSD"), which on May 22, 2013, initiated an investigation into 13 of the missing firearms. Compl. [Dkt. No. 1] ¶ 62; Ex. V [Dkt. No. 1-23] 1. The investigation was overseen by Supervisory Special Agent ("SSA") Lisa Locascio ("Locascio").[5] Id.

         On July 16, 2013, a letter was presented to former FBI Director James Comey "asking for Christian civil rights to be better defended and identified in areas where Christians were being discriminated." Compl. [Dkt. No. 1] ¶ 68. Plaintiff was one of several FBI employees who signed the letter, which stated, in part, that:

Those who adhere to Christianity are systematically offended, mistreated and discriminated against," for example, because "every June, thousands of Christian FBI employees are forced to endure the FBI's active promotion of homosexuality, bisexuality and transsexuality in the workplace, despite the fact that these lifestyles are contrary to their protected religious beliefs. Not only does this create a hostile work environment, but for those who find these celebrations inappropriate, nearly every announcement about an LGBT event technically meets the FBI's own definition for "sexual harassment." Ex. Z [Dkt. No. 1-27] 4.

         In late July 2013, employees in the LD "voiced their concern for their safety when dealing with Mr. Tweed and his behavior" based on religious quotations appearing at the bottom of his emails near his signature block that were perceived as threatening in nature to the recipients.[6] Compl. [Dkt. No. 1] ¶ 70; Ex. AA [Dkt. No. 1-28] 1.

         On September 27, 2013, the INSD investigation was expanded to include potential security violations based on the following allegations:

Mr. Tweed refused to follow instructions and guidance provided by his [Unit Chief ("UC")] on multiple occasions. Mr. Tweed hid the fact he was keeping a "shadow" record of firearms in a FBI LD Notebook, despite the fact his job duties mandated he keep these records on a computer database. He removed this notebook from the FBI LD and stated he took it home and relinquished it to his wife for safekeeping. During his interview, he initially stated he did not know where the notebook was and then stated it was at his residence. He conducted unauthorized firearms analysis [sic] upon request from FBI Offices instead of referring them to certified firearms examiners....Ex. EE [Dkt. No. 1-32] 1.

         On October 13, 2013, the INSD referred its investigation report to the OPR for "adjudication." Def.Ex.5, [Dkt.No. 13-5] 7.

         As part of its evaluation of the allegations in the INSD Report, the OPR required plaintiff to take a polygraph, which was scheduled for October 29, 2013. Ex. NN [Dkt. No. 1-40] 16. On October 28, he informed the INSD SSA that he was declining to take the test based primarily on his distrust of polygraph machines. Id. After being ordered to appear for the polygraph, he appeared for the test but ultimately refused to take it. Id. Plaintiff alleges that when he arrived, Locascio "belittled" his religion by making him "swear on a stack of Bibles" and referenced his July 2013 letter concerning Christian FBI employees' civil rights. Compl. [Dkt. No. 1] ¶ 81.

         On November 12, 2013, the OPR sent the INSD's investigation report to plaintiff. Ex. KK [Dkt. No. 1-38] 4-17. Based on the report's findings, the OPR recommended that plaintiff be dismissed from the "rolls of the FBI" due to multiple FBI Offense Code violations including losing three firearms and causing the agency to have to classify six firearms as "destroyed" because there was no record in the RFC database to account for them. The report cited to over 400 weapons being unmarked, untagged, or not entered properly, Id. at 5-6, and to plaintiff repeatedly refusing or failing to comply with his supervisors and their orders, including that he failed to clean his office area, he failed to provide the UC with a standard operating procedure (SOP) document until after multiple orders, he refused to provide the UC with an email he sent to ...


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