HORNSBY v. WATT
Filing
11
MEMORANDUM OPINION AND ORDER granting 7 Defendant's Motion to Dismiss; Plaintiff's Complaint is hereby dismissed in its entirety. Signed by Judge Gladys Kessler on 11/4/16. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD HORNSBY
Plaintiff,
v.
Civil Action No. 16-0517 (GK)
MELVIN L. WATT, DIRECTOR,
FEDERAL HOUSING FINANCE AGENCY:
Defendant.
Memorandum Opinion and.Order
Plaintiff
Richard
Hornsby
("Plaintiff,"
"Hornsby")
brings
this lawsuit against the Director of the Federal Housing Finance
Agency ("Defendant," "Government," or "FHFA").
Plaintiff alleges
two counts of retaliation in violation of Title VII of the Civil
Rights
Act
Complaint
of
~~
1964
26-29.
("Title
VII"),
42
U.S.C.
§2000e
et
seq.
Specifically, Plaintiff alleges that he was
placed on administrative leave and then proposed for removal from
his position because he agreed to settle a retaliation complaint
brought against FHFA by one of his subordinates.
Complaint.
See generally
Plaintiff seeks compensatory damages of $300,000, plus
interest, improved performance ratings and any resultant bonuses,
plus interest, crediting of annual and sick leave for the time he
1
remained on administrative leave, and attorney's fees and costs.
Id. at p. 14-15.
Pursuant
to Rule
12 (b) (6)
of
the
Federal
Rules
of
Civil
Procedure, Defendant filed its Motion to Dismiss on June 23, 2016.
Mot. to Dismiss
[Dkt. No. 7].
July 14, 2016.
Opp'n [Dkt. No. 9].
July 21,
Reply [Dkt. No.
2016.
Plaintiff filed his Opposition on
Defendant filed a Reply on
10].
Upon consideration of the
Motion, Opposition, Reply, and the entire record herein, and for
the reasons stated below, Defendant's Motion to Dismiss is granted.
I.
Background
A. Factual Background 1
i. Hornsby's Early Tenure at FHFA
Richard Hornsby was
hired as
("COO") of FHFA on December 6, 2011.
the
Chief Operating Officer
Complaint
~
5.
Initially,
The following allegations are taken from Plaintiff's Complaint,
unless otherwise noted, and are accepted as true.
Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)
("we accept the
plaintiff's factual allegations as true"). In addition, the Court
considers the contents of both the letter, placing Hornsby on
Administrative Leave, Ex. A to Mot. Dismiss [Dkt. No. 7-2], and
the Notice of Proposal to Remove, Ex. B to Mot. Dismiss [Dkt. No.
7-3] .
Both these documents are incorporated into Plaintiff's
Complaint by reference, see Complaint ~~ 17, 23, and therefore may
be considered by the Court. Maggio v. Wisconsin Ave. Psychiatric
Ctr., 795 F.3d 57, 62 (D.C. Cir. 2015) (in deciding on a motion to
dismiss a court may consider sources other than the complaint,
such as "documents incorporated into the complaint by reference
and matters of which a court may take judicial notice.") (quoting
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007)) (internal quotation marks omitted).
1
2
Hornsby reported to Edward DeMarco ("DeMarco"), who had been the
previous COO of FHFA but was serving as the Acting Director at the
time of Hornsby's hire.
~
Id. at
9.
For 2012; Hornsby's first
full year as COO, DeMarco rated his performance as "Outstanding"
and gave him a bonus of $17,500 and a retention allowance of over
$25,000.2
Id.
ii.
Deterioration in Relationship between Hornsby and
DeMarco
Sometime in 2013, Melvin Watt was nominated to be the Director
of FHFA.
Watt
Id. at
were
~
10.
confirmed,
DeMarco allegedly became concerned that if
he would be
forced
into a
position with
significantly less authority than that of either Acting Director
or
coo.
Id.
When it became evident in September 2013 that Watt
would likely be confirmed, DeMarco allegedly began a campaign of
"criticism and abuse" intended to drive Hornsby from FHFA so that
DeMarco could take back his position as
coo.
Id.
The Court stresses that while it takes notice of the contents
of the Proposal to Remove, it does not accept as true the
statements describing Hornsby's conduct contained therein because
Hornsby characterizes those statements as wholly untrue and
fabricated.
Complaint ~~ 16, 23.
Instead, for purposes of
deciding the Motion to Dismiss, the court accepts as true Hornsby's
allegation that these descriptions of his conduct were fabricated
by various individuals within FHFA.
See Browning, 292 F. 3d at
242.
2 The retention allowance was intended to defray the costs of
maintaining a residence in Washington (in addition to his primary
residence in California) and of travel to California to see his
wife. Complaint ~ 9.
3
For example,
in September 2013 DeMarco cancelled Hornsby's
retention bonus,
and in December 2013 DeMarco informed Hornsby
that he would be receiving a critical performance rating for 2013.
Id. at ~ 11.
2013
On March 11, 2014, DeMarco provided Hornsby with his
performance
Successful."
Id.
review,
rating
his
performance
"Fully
This rating was two levels below the 2012 rating
of "Outstanding," and made Hornsby ineligible for a cash bonus.
Id. at
~~
11, 12.
Watt took office as the Director of FHFA on January 6, 2014.
Id. at
~
12.
tendered his
DeMarco reverted to a Deputy Director position, and
resignation from
FHFA in late March 2014,
to be
effective at the end of April 2014.
iii.
Issues Arise between Hornsby and Subordinate during
Same Period
During this same time period,
Hornsby alleges that he was
beginning to lose confidence in one of his subordinates, Jeffrey
Risinger
Id.
~
at
("Risinger"),
14.
the head of FHFA's Human Resources Unit.
According to Hornsby,
he had initially supported
Risinger after a retaliation complaint was brought against him by
his subordinate, Marie Harte ("Harte").
April
25,
2014,
Hornsby,
Id. at
in his capacity as
~
15.
On Friday,
FHFA' s
settlement
officer for Equal Employment Opportunity (EEO) claims, attended a
mediation session related to Harte's EEO complaint.
meeting,
Id.
In this
Hornsby came to believe that Risinger had lied to him
4
about the issues raised in Harte's EEO complaint, and therefore
decided to settle her complaint.
Id.
iv. Risinger Reports that Hornsby Threatened DeMarco
The following Monday,
FHFA
officials
that
April 28,
Hornsby
had
2014,
made
DeMarco's life and physical safety.
Id.
Risinger reported to
statements
threatening
Specifically, Risinger
reported that Hornsby said, among other things: "I can understand
how someone could go postal,
[sic] if I decide to take myself out
I will walk into Ed DeMarco's office and blow his brains out and
then kill myself"; that he would shoot DeMarco in the kneecap and
state "don't [expletive redacted] with me"; and that he would "rip
[DeMarco] limb by limb from his office."
Ex. B to Mot. to Dismiss
[Dkt. No. 7-3 at p. 3-4].
Hornsby alleges that Risinger's report was "pure invention"
and that he "never asserted any such threats."
Instead,
he
alleges
that Risinger
fabricated
Complaint at~ 16.
these
threats
in
retaliation for Hornsby's decision to settle Harte's EEO complaint
against Risinger.
v.
Id. at
~
25.
Hornsby Is Placed on Administrative Leave
The same day as Risinger reported the purported threats, FHFA
management placed Hornsby on administrative
immediately escorted from the building.
I
5
Id.
leave and had him
at
~
17; Ex. A to
Mot. to Dismiss [Dkt. No. 7-2 at p. 2].
The letter placing him on
administrative leave states that his administrative leave would
last "until further notice,"
were investigated,
and that he would receive his usual pay and
benefits while on leave.
Subsequently,
while the allegations against him
Id.
agents
[Dkt. No. 7-2 at p. 2-3].
from
FHFA' s
Office of
the
Inspector
General (OIG) interviewed Hornsby and then placed him under arrest.
~~
Complaint at
felonies,
Id. at
misdemeanors.
While
17, 18.
he
~
18, but the charges were later reduced to two
Id. at
was
Hornsby was initially charged with three
~
20.
awaiting
trial,
Hornsby
received
multiple
settlement offers from FHFA, including from Watt directly. Id. at
~~
19, 20.
Though the terms of these offers are not specified in
detail in the Complaint, Hornsby claims that FHFA offered him a
"buy-out" and the dismissal of charges if he left the agency.
Id.
Hornsby was told that if he refused the settlement he would be
terminated regardless of the outcome of the trial.
vi.
Id.
Hornsby Is Tried, Acquitted, and Thereafter Removed
from Employment at FHFA
In November 2014,
a bench trial was held in D.C.
Court on the two misdemeanor charges against Hornsby.
21.
Superior
Id. at ~
On November 20, 2014, Hornsby was acquitted of both charges.
6
Id.
Following his acquittal, Hornsby was not returned to regular
duty at FHFA.
~
Id. at
Instead,
on
22.
December
19,
2014,
Watt
issued
a
Notice
of
Proposal to Remove ("Proposal to Remove") Hornsby from his position
as
coo
and from federal service.
[Dkt. No. 7-3 at p. 3-4].
a
Id.; Ex. B to Mot. to Dismiss
In the Proposal to Remove Watt identifies
long list of incidents,
from which he concluded Hornsby had
engaged in "Conduct Unbecoming a Federal Manager."
to Dismiss
[Dkt. No. 7-3 at p. 3-6].
Ex. B to Mot.
Among these incidents were
the purported threats against DeMarco reported by Risinger.
In addition,
t~e
Proposal to Remove also included allegations of
improper conduct made by employees other than Risinger.
Proposal
to
Remove
administrative
Id.
determined
leave.
Id.
that
[Dkt.
No.
Hornsby
7-3
would
at p.
9]
Id.
The
remain
on
Hornsby
alleges that the charges in the Proposal to Remove "were untrue
and twisted out of context" and "invented" by the investigators
from FHFA's Office of General Counsel and OIG.
Complaint~
23.
On March 19, 2015, Watt issued a decision to remove Hornsby
from his position as COO and from federal service, effective March
21, 2015.
Complaint
~
24.
B. Procedural Background
Following his removal, Hornsby filed an appeal with the Merit
Systems Protection Board ("MSPB"), arguing that his removal was a
7
violation of
civil service protections and an act of unlawful
retaliation in violation of Title VII.
is still pending before the MSPB.
0~
Id. at
~
24.
That appeal
Id.
March 18, 2016, Hornsby filed his Complaint in this action,
challenging only the failure to reinstate him from administrative
leave following his acquittal and his proposed removal.
1) .
Following the grant of an extension of time, the Government
timely filed its Motion to Dismiss on June 23,
7).
[Dkt. No.
2016.
[Dkt. No. 9) .
Hornsby filed an Opposition on July 14, 2016.
The Government filed its Reply on July 21, 2016.
II.
[Dkt. No.
[Dkt . No. 10] .
Standard of Review
Rule 12(b) (6) of the Federal Rules of Civil Procedure permits
dismissal upon the "failure to state a claim upon which relief can
be granted."
dismiss,
a
Fed. R. Civ. P. 12(b) (6).
complaint
must
contain
"To survive a motion to
sufficient
factual
matter,
accepted as true, to state a claim to relief that is plausible on
its face." Ashcroft v. Iqbal, 556 U.S. 662,
quotation marks
and
citations
omitted) .
plausible when the pleaded facts
reasonable
inference
misconduct alleged."
that
Id.
the
678
(2009)
A claim
is
(internal
facially
"allows the court to draw the
defendant
is
liable
for
the
Plausibility requires "more than a sheer
8
possibility that a defendant has acted unlawfully," but it is not
a "probability requirement."
At the Rule 12 (b) (6)
Id.
stage,
the court accepts all of the
complaint's factual allegations as true and draws all reasonable
inferences from those facts
in plaintiff's favor.
Clinton,
However,
292
F. 3d at 242.
Browning v.
the court does not accept
"inferences drawn by plaintiff if such inferences are unsupported
by the facts set out in the complaint."
marks and citations omitted).
Id.
(internal quotation
Similarly, the court need not accept
plaintiff's legal conclusions simply because they are "cast in the
form of factual allegations."
citations omitted) .
elements,
Id.
(internal quotation marks and
"Threadbare recitals of a cause of action's
supported
by
mere
conclusory
insufficient to survive a motion to dismiss.
statements,"
are
Iqbal 556 U.S. at
678.
In addition to the complaint,
sources,
such as
the court may consider other
"documents incorporated into the complaint by
reference and matters of which a court may take judicial notice."
Maggio,
795 F.3d at 62
(quoting Tellabs,
(internal quotation marks omitted) .
9
Inc.,
551 U.S. at 322)
III. Analysis
A. Title VII Retaliation Standard
"Title
VII
prohibits
the
federal
government
from.
retaliating against employees for engaging in activity protected
by Title VII."
2008)).
Montgomery v. Chao, 546 F.3d 703, 706,
(D.C. Cir.
To prove unlawful retaliation, a plaintiff must show:
that she engaged in protected activity;
(1)
(2) that the employer took
a materially adverse action against her; and (3) that the employer
took
the
activity.
2012).
action
"because"
McGrath v.
the
Clinton,
"To survive [a] .
employee
engaged
666 F.3d 1377,
. motion to dismiss,
in
1380
protected
(D.C.
Cir .
[a] plaintiff [' s]
complaint must contain sufficient factual matter, accepted as true
to plausibly establish those three elements." 3
Howard R.L. Cook &
Tommy Shaw Found. for Black Employees of the Library of Congress
v.
Billington,
737
F.3d
767,
772
(D.C.
Cir.
2013)
(internal
Where a plaintiff attempts to prove unlawful retaliation in
violation of Title VII using circumstantial evidence of motive,
the burden-shifting framework of McDonnell Douglas ordinarily
applies.
Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805
(1973)).
However, when assessing the sufficiency of a complaint
at the 12 (b) ( 6) stage, the court will not dismiss a complaint
simply for failing to plead the elements of a prima facie case.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12 (2002). Instead,
"ordinary rules for assessing the sufficiency of a complaint
apply."
Id. at 511; see e.g. Wheeler v. Georgetown Univ. Hosp.,
788 F. Supp. 2d 1, 5 (D.D.C. 2011); Bryant v. Pepco, 730 F. Supp.
2d 25, 28-29 (D.D.C. 2010).
3
10
quotation marks and citations omitted)
(explaining the application
of Iqbal to a Title VII retaliation claim) .
In this case, the Government argues that Plaintiff has failed
to allege any facts from which the Court can infer that the actions
taken against him constitute materially adverse actions. 4
B. Plaintiff Has Failed to Allege Any Facts Supporting an
Inference that He Was Subjected to Materially Adverse
Actions
i.
An Action Is Materially
Objectively Tangible Harm
Adverse
if
it
Causes
Materially adverse actions are those that are "harmful to the
point that they could well dissuade a reasonable worker from making
or supporting a charge of discrimination."
Fe Ry.
Co. v. White,
548 U.S.
53,
68
Burlington N. &'Santa
(2006).
To be materially
adverse, an action must cause "objectively tangible harm," which
Bridgeforth v. Jewell,
cannot be "unduly speculative."
661,
663
(D.C. Cir. 2013)
721 F.3d
(internal citation and quotation marks
The Government concedes that Plaintiff engaged in protected
activity by settling Harte's retaliation complaint against
Risinger.
See Mot. to Dismiss at p. 12.
The Government also
argues, that even if the Court were to conclude that Plaintiff has
sufficiently plead facts supporting an inference he was subject to
materially adverse actions,
he has failed to allege facts
supporting an inference that there is a causal connection between
his participation in protected activity and those actions. Id. at
p. 8.
It is unnecessary to address this argument because, as
discussed below, the Court concludes that Plaintiff has failed to
allege facts sufficient to support an inference that he was subject
to any materially adverse actions and his Complaint must be
dismissed on that basis.
4
11
omitted); see also Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir.
2009)
it
(failure to promote is not a materially adverse action where
does
not
Glassman,
result
in
"objectively tangible
511 F.3d 151,
160-61
(D.C.
Cir.
harm") ;
2007)
Wiley v.
(change in job
responsibilities is not a materially adverse action if there is no
"objectively tangible harm").
Ordinarily,
a
materially
adverse
action
"involves
a
significant change in employment status, such as hiring, firing,
failing
to
promote,
responsibilities,
benefits."
adverse
reassignment
or a
are not
significantly
causing
decision
Bridgeforth,
actions
with
significant
However,
721 F. 3d at 663.
limited to actions
different
change
in
materially
that occur
in the
workplace or are directly related to the terms of employment.
Burlington N.,
F.3d 1211,
548 U.S. at 63-64
1213
(D.C.
Cir.
(citing Rochon v. Gonzales, 438
2006)
(FBI's
refusal,
contrary to
policy, to investigate death threats against employee constitutes
a materially adverse action) .
ii.
The Failure to Reinstate Plaintiff from Paid
Administrative Leave Did Not Cause Him Objectively
Tangible Harm
The Government argues that the decision not to reinstate an
employee
from a
investigation
adverse action.
is
period of paid administrative leave,
ongoing,
can
never
Mot. to Dismiss at p. 9.
12
constitute
a
while an
materially
Plaintiff responds that
this decision, when viewed in context of all other events in this
case,
was sufficiently harmful to dissuade a
reasonable worker
from engaging in protected activity and is therefore a materially
adverse action.
Opp'n at p. 3.
The Court of Appeals does not appear to have addressed this
question,
point.
and neither party has
identified a
case directly on
However, the Government cites to a number of cases in this
District holding that placing an employee on paid administrative
leave does not, in and of itself, constitute an adverse employment
action for purposes of a Title VII discrimination claim.
Mot. to
Dismiss at 9 (citing Jones v. Castro, 168 F. Supp. 3d 169, 180-81
(D.D.C. 2016)
(holding that initial paid suspension of two weeks,
periodically
extended
investigation was
to
total
conducted,
is
19
not
months
while
an adverse
an
internal
action because
Plaintiff "cannot show 'objectively tangible harm'" resulting from
paid leave)
(citing inter alia Bland v. Johnson,
66 F. Supp. 3d
69, 73 (D.D.C. 2014), aff'd in part, rev'd in part per curiam, 637
Fed.Appx.
2
(D.C.
Cir.
2016)
(affirming
the
district
dismissal of plaintiff's Title VII claims); Brown v.
Univ. Hosp. Medstar Health,
828 F. Supp.
2d 1,
9
court's
Georgetown
(D.D.C.
2011);
Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 79 (D.D.C. 2002)));
but see Richardson v. Petasis, 160 F. Supp. 3d 88, 117-18 (D.D.C.
2015)
(placement
on
paid
administrative
13
leave
constitutes
an
adverse employment action where the express terms of employee's
leave resulted in termination of employment) .
Additionally,
the Courts of Appeal in many other Circuits
have concluded that placing an employee on paid leave does not
constitute an adverse action.
90-91 (2d Cir. 2006)
See Joseph v. Leavitt, 465 F.3d 87,
(placement on paid administrative leave does
not constitute an adverse action in the Second,
Fourth,
Fifth,
Sixth, and Eighth Circuits); accord Jones v. Se. Pa. Transp. Auth.,
796 F.3d 323, 326 (3d Cir. 2015)
an adverse action) .
Second
Circuit
has
(placement on paid leave is not
Furthermore,
addressed
the
the Court of Appeals for the
very
issue
presented
here.
Joseph, 465 F.3d at 90-93.
In Joseph, the court held that where an employee is placed on
paid
administrative
leave
during
the
pendency
of
a
criminal
investigation and the criminal charges are dismissed, the failure
to
immediately
reinstate
the
employee
does
not
constitute
an
adverse action if the employer then pursues its own investigation
and conducts it with "reasonable diligence."
Joseph, 465 F.3d at
92.
felony
There,
an
employee
was
arrested
for
assault
and
subsequently placed on paid administrative leave by his employer.
Id. at 88-89.
employer
While the criminal charges were still pending, his
tried
to
initiate
its
own
investigation
of
what
transpired, but the employee refused to cooperate on the advice of
14
counsel.
Id.
dropped,
but
restarted
at
89.
Ultimately,
the
criminal
rather than reinstate the employee,
its
administrative
investigation
and
leave
additional
for
an
investigation was completed.
kept
the
charges
were
the employer
employee
on
months
until
five
paid
the
Id.
The court held that the failure to immediately reinstate the
employee following dismissal of the assault charge, who was being
paid,
was
not
recognized
an adverse
that
the
action.
agency
investigating the truth of
had
the agency's
The
91-93.
independent
court
interest
even if
Id. at 92.
in
there was
beyond a reasonable doubt,
the employee had committed a crime.
that
an
at
the allegations,
insufficient evidence to prove,
found
Id.
that
The court further
investigation had been conducted with
"reasonable diligence," and therefore,
that the period of leave
had not been "unreasonably prolonged."
Id.
Thus, the court held
that
the
plaintiff
there
was
no
adverse
action as
could not
identify any material harm resulting from the failure to reinstate
him.
Id. at 92-93.
The only contrary authority is Richardson.
88.
There,
the court held that placement on 39 days of paid
administrative
because:
nature"
160 F. Supp. 3d
leave
constituted an
adverse
it was of "unusually long duration";
employment
action
and the "unusual
of the conditions of the employee's leave affected the
15
terms of her employment.
Id.
Specifically,
at 118.
the court
found that the terms of plaintiff's administrative leave required
her to perform certain tasks to the satisfaction of her supervisor
in
order
to
return
administrative
leave
these
Id.
tasks.
to
work,
but
that
other
terms
of
her
effectively prevented her from completing
at
106,
118.
Unable
to comply with these
contradictory mandates, the plaintiff resigned.
Id. at 106.
Based
on the "unusual nature" of the terms of her leave and what the
court
termed
plaintiff's
a
"lengthy
administrative
suspension",
leave
the
created
court
light
of
this
near-universal
that
"objectively tangible
harm" and was therefore an adverse employment action.
In
held
Id. at 118.
consensus,
the
Court
concludes that placing an employee on paid administrative leave
does not, in and of itself, constitute a materially adverse action
for purposes of a retaliation claim.
Admittedly, all of the cases
discussed are Title VII discrimination cases, and thus apply the
"adverse employment action" standard rather than the "materially
adverse action"
standard applicable in retaliation cases.
See
Burlington N., 548 U.S. at 67 ("Title VII's substantive provision
and its antiretaliation provision are not coterminous") .
But while
the scope of actions covered by Title VII's substantive provision
and its anti-retaliation provisions differ, the magnitude of harm
that plaintiff must suffer does not.
F. 3d
at
663
(retaliation claim
16
Compare Bridgeforth,
requires
721
"objectively tangible
harm"), with Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir. 2002)
(discrimination claim requires "objectively tangible harm"); see
also Rochon v. Gonzales, 438 F.3d at 1219 ("materiality" of harm
alleged is common requirement in retaliation and discrimination
claims).
Thus, the holding that a period of paid leave does not,
in and of itself, cause objectively tangible harm is equally true
in both the retaliation and discrimination contexts.
Accordingly,
reinstate
the
Plaintiff
Court
holds
that
the
from paid administrative
decision
leave
not
to
immediately
following his acquittal was not a materially adverse action because
Plaintiff's
it did not cause him any objectively tangible harm.
claim is quite narrow.
He does not challenge the initial decision
to place him on administrative leave,
instead claiming that he
should have been immediately reinstated after being
guilty on November 20, 2014.
issued
the
Proposal
to
found not
And on December 19, 2014, the agency
Remove
Plaintiff,
which
constitutes
a
distinct action that independently justified maintaining him on
paid administrative leave status.
Thus, the essence of Plaintiff's
complaint is that his paid administrative leave was prolonged by
roughly 29 days.s
s Given the extremely short duration of the challenged action,
Plaintiff's reliance on cases involving permanent reassignments or
reductions in work level is misplaced. See Opp'n at p. 3 (citing
Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007); Holcomb
v. Powell, 433 F.3d 889, 902-03 (D.C. Cir. 2006)).
17
Because a period of paid administrative leave does not,
in
and of itself, constitute a materially adverse action, Plaintiff
must allege specific, additional facts from which the Court could
infer that this short extension of his paid administrative leave
caused him objectively tangible harm.
He has failed to do so.
First, it is undisputed that Plaintiff continued to receive
full and pay and benefits throughout this time.
19.
See Complaint
~
Second, the additional 29 days is not, in itself, so long as
to have caused him any objectively tangible harm.
See Castro, 168
F. Supp. 3d at 180-81 (19 months of paid administrative leave is
not an adverse action) .
Nor is this like Richardson,
because
Plaintiff has failed to allege that other harms resulted directly
See 160 F. Supp. 3d
from the terms of his administrative leave.
at 118.
To
the
reinstate
extent
him
is
that
a
Plaintiff
materially
argues
adverse
that
action
the
failure
because
unreasonable or unjustified, that argument also fails.
it
to
was
While at
least one court has suggested that "unreasonably prolong[ing]" a
period of paid administrative
leave may constitute an adverse
action, see Joseph, 465 F.3d at 92, Plaintiff has failed to allege
any facts
supporting such an inference here.
Plaintiff does not allege that
FHFA failed
For example,
to investigate the
charges against him with "reasonable diligence," nor does he allege
18
any facts which would support such an inference.
See Id.
Government
interest
undoubtedly
had
an
independent
The
in
investigating the charges against him that did not end with his
acquittal, Id. at 91-92, and the 29 days which FHFA took following
his
acquittal
to
review
the
evidence
presented
at
trial
and
determine next steps strike the Court as eminently reasonable.
See Ex. B to Mot.
to Dismiss
[Dkt. No.
7-3 at p.6]
(discussing
evidence presented at trial) .
Nor
has
Plaintiff
identified any
statute,
regulation,
or
other employment policy that mandated FHFA reinstate him following
his acquittal.
Thus, while Hornsby may have personally expected
to return to work immediately following his acquittal,
he has
failed to allege arty facts supporting an inference that FHFA was
unjustified when it declined to do so.
Plaintiff has
failed
to allege any facts
that support an
inference that the failure to reinstate him following his acquittal
caused him objectively tangible harm.
materially
adverse
action,
and
he
Consequently, it is not a
cannot
sustain
a
claim
of
retaliation on that basis.
iii.
The Proposal to Remove Plaintiff Did Not Cause Him
Objectively Tangible Harm
Similarly, the Government argues that the Proposal to Remove
is not a materially adverse action because its issuance caused
Plaintiff
no
harm.
Mot.
to
Dismiss
19
at
p.
10-11.
Plaintiff
..
responds that the Proposal to Remove, when viewed in context of
all other events in this case, was sufficiently harmful to dissuade
a reasonable worker from engaging in protected activity and is
therefore a materially adverse action.
A
Proposal
to
Remove
materially adverse action.
348,
357
adverse
(D.D.C.
2015)
employment
'materially
adverse
ordinarily
by its
(D.C. Cir.
not
constitute
(Proposals to Remove do not
actions
because
consequence'
no
a
follow[]
02-cv-0950,
it does
not
"amount to
'tangible
directly
harm'
from
or
them"
2003 WL 21788953, at *5
A Proposal to Remove is just that,
very nature
employee.
does
See Knight v. Mabus, 134 F. Supp. 3d
(quoting Boykin v. England,
(D.D.C. 2003))).
Opp'n at p. 3.
effectuate
the
a proposal;
removal
of
an
Id.; see also Baloch v. Kempthorne, 550 F.3d 1191, 1199
2008)
(there is no materially adverse action where a
suspension is merely "proposed" but not served (emphasis in the
original)).
Instead a Proposal to Remove is a procedural device used to
provide an employee with notice of the employer's intention to
remove her at
some later date and give her an opportunity to
dissuade the employer from doing so.
See 5 C.F.R.
§
752.404(c)
(allowing employee to provide formal answer to the charges forming
the basis of the proposal) .
the
final
decision
to
It is "essentially a precursor" to
remove
the
20
employee.
Boykin,
2003
WL
21788953 at *5.
As such,
no objectively tangible harm results
from it, and it ordinarily cannot constitute a materially adverse
action. 6
Id. at *5; Knight, 134 F. Supp. 3d at 357.
Consequently,
a plaintiff claiming that a Proposal to Remove is a materially
adverse action must allege specific facts supporting an inference
that she suffered objectively tangible harms as a result of its
issuance.
Here,
Plaintiff has failed to allege any facts
such an inference.
supporting
For example, he has failed to allege that his
pay, benefits, or anything else materially changed as a result of
the issuance of the Proposal to Remove. 7
11.
Mot.
to Dismiss at p.
In the end, what is fatal to Plaintiff's claim is that FHFA
remained free to rescind the Proposal to Remove at any time between
its issuance on December 19, 2014,
and his removal on March 19,
A Proposal to Remove may be used to show that Plaintiff suffered
a materially adverse action where the Plaintiff claims that she
was constructively discharged.
Burton v. Donovan, 12-cv-1537,
2016 WL 5660285 at *6 (D.D.C. 2016).
However, in doing so, the
Proposal to Remove is merely evidence used to overcome the
presumption that the Plaintiff's resignation or retirement was
voluntary. Id. (citing Aliotta v. Bair, 614 F.3d 556, 566-67 (D.C.
Cir. 2010)) -.-Ultimately, it is the termination of plaintiff's
employment, accomplished through an involuntary resignation or
retirement, that constitutes the materially adverse action, not
the Proposal to Remove. See Aliotta, 614 F.3d at 566 (a plaintiff
can "demonstrate she suffered an adverse employment action by
showing the resignation or retirement was,
in fact,
not
voluntary.") (emphasis added)).
6
That Plaintiff was kept on paid administrative leave as a result
of its issuance is insufficient for the reasons discussed above.
7
21
2015,
meaning that no objectively tangible harm could possibly
result because no final decision had been made.
752.404
See 5 C.F.R.
§
(notice of proposed removal is prerequisite to removing
federal employee) .
be
To
sure,
Plaintiff's
ultimate
removal
caused
him
significant harm and flowed directly from the Proposal to Remove.
But this fact merely serves to highlight the defect in his current
claim:
fire
Plaintiff's real complaint is not that FHFA proposed to
him,
but that he was,
in fact,
Yet,
fired.
Plaintiff's
challenge to his ultimate removal is not before this Court, but
instead is currently pending before the MSPB.
See Knight,
Complaint
~
24.
134 F. Supp. 3d at 357 (a Proposal to Remove is "not
separately actionable" from the ultimate removal) .
As
Plaintiff
fails
to
allege
any
facts
supporting
the
inference that the Proposal to Remove resulted in any objectively
)
tangible harms, it is not a materially adverse action and he cannot
sustain a claim of retaliation on that basis.
Furthermore, because
Plaintiff has failed to allege facts supporting an inference that
he was subjected to any materially adverse actions whatsoever, the
court is unable to draw the inference that Defendant is liable for
retaliation in violation of Title VII and Plaintiff's Complaint
22
must be dismissed. 8
See Iqbal, 556 U.S. at 678; Billington, 737
F.3d at 772.
IV.
Conclusion
For the foregoing reasons, Defendant's Motion to Dismiss is
granted, and it is hereby
Ordered, that Defendant's Motion to Dismiss be granted, and
further
Ordered,
that
Plaintiff's
Complaint
be
dismissed
in
its
entirety.
November 4, 2016
Plaintiff
argues
that
the
Court
should
look
to
the
"'constellation of surrounding circumstances, expectations, and
relationships'" to determine whether these actions would have
dissuaded a reasonable employee from making or supporting a charge
of discrimination and therefore are materially adverse actions.
Opp'n at p. 3 (quoting Burlington N., 548 U.S. at 69):
Because
the Court of Appeals has made clear that a materially adverse
action is one that causes objectively tangible harm, Bridgeforth,
721 F. 3d at 663, the Court refuses to engage in the open-ended
analysis suggested by Plaintiff.
8
23
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