United States District Court, E.D. Virginia, Alexandria Division
TIMOTHY E. TWEED, Plaintiff,
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Defendant.
M. Brinkema United States District Judge
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). 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
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
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.
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.
Plaintiffs Employment History
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.
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
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. Ex. T [Dkt. No. 1-21] 2-3.
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"). Id.
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.
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. Compl. [Dkt. No. 1] ¶ 70; Ex. AA
[Dkt. No. 1-28] 1.
September 27, 2013, the INSD investigation was expanded to
include potential security violations based on the following
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.
October 13, 2013, the INSD referred its investigation report
to the OPR for "adjudication." Def.Ex.5, [Dkt.No.
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.
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 ...