Hornsby v. Watt , 217 F. Supp. 3d 58 ( 2016 )

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 of 1964 ("Title VII"), 42 U.S.C. §2000e et seq.
Complaint ~~ 26-29. 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. See generally
Complaint. 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]. Plaintiff filed his Opposition on
July 14, 2016. Opp'n [Dkt. No. 9]. Defendant filed a Reply on
July 21, 2016. Reply [Dkt. No. 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 the Chief Operating Officer
("COO") of FHFA on December 6, 2011. Complaint ~ 5. Initially,
1 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).
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. Id. at ~ 10. DeMarco allegedly became concerned that if
Watt were confirmed, 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. On March 11, 2014, DeMarco provided Hornsby with his
2013 performance review, rating his performance "Fully
Successful." Id. 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. DeMarco reverted to a Deputy Director position, and
tendered his 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 ("Risinger"), the head of FHFA's Human Resources Unit.
Id. at ~ 14. According to Hornsby, he had initially supported
Risinger after a retaliation complaint was brought against him by
his subordinate, Marie Harte ("Harte"). Id. at ~ 15. On Friday,
April 25, 2014, Hornsby, in his capacity as FHFA' s settlement
officer for Equal Employment Opportunity (EEO) claims, attended a
mediation session related to Harte's EEO complaint. Id. In this
meeting, 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, April 28, 2014, Risinger reported to
FHFA officials that Hornsby had made statements threatening
DeMarco's life and physical safety. Id. 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." Complaint at~ 16.
Instead, he alleges that Risinger fabricated these threats in
retaliation for Hornsby's decision to settle Harte's EEO complaint
against Risinger. Id. at ~ 25.
v. Hornsby Is Placed on Administrative Leave
The same day as Risinger reported the purported threats, FHFA
management placed Hornsby on administrative leave and had him
immediately escorted from the building. Id. at ~ 17; Ex. A to
I
5
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," while the allegations against him
were investigated, and that he would receive his usual pay and
benefits while on leave. Id. [Dkt. No. 7-2 at p. 2-3].
Subsequently, agents from FHFA' s Office of the Inspector
General (OIG) interviewed Hornsby and then placed him under arrest.
Complaint at ~~ 17, 18. Hornsby was initially charged with three
felonies, Id. at ~ 18, but the charges were later reduced to two
misdemeanors. Id. at ~ 20.
While he was 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. Id.
vi. Hornsby Is Tried, Acquitted, and Thereafter Removed
from Employment at FHFA
In November 2014, a bench trial was held in D.C. Superior
Court on the two misdemeanor charges against Hornsby. Id. at ~
21. 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 ~ 22.
Instead, on December 19, 2014, Watt issued a Notice of
Proposal to Remove ("Proposal to Remove") Hornsby from his position
as coo and from federal service. Id.; Ex. B to Mot. to Dismiss
[Dkt. No. 7-3 at p. 3-4]. In the Proposal to Remove Watt identifies
a long list of incidents, from which he concluded Hornsby had
engaged in "Conduct Unbecoming a Federal Manager." Ex. B to Mot.
to Dismiss [Dkt. No. 7-3 at p. 3-6]. Among these incidents were
the purported threats against DeMarco reported by Risinger. Id.
In addition, t~e Proposal to Remove also included allegations of
improper conduct made by employees other than Risinger. Id. The
Proposal to Remove determined that Hornsby would remain on
administrative leave. Id. [Dkt. No. 7-3 at p. 9] 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. Id. at ~ 24. That appeal
is still pending before the MSPB. Id.
0~ 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. [Dkt. No.
1) . Following the grant of an extension of time, the Government
timely filed its Motion to Dismiss on June 23, 2016. [Dkt. No.
7). Hornsby filed an Opposition on July 14, 2016. [Dkt. No. 9) .
The Government filed its Reply on July 21, 2016. [Dkt . No. 10] .
II. 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." Fed. R. Civ. P. 12(b) (6). "To survive a motion to
dismiss, a complaint must contain 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, 678 (2009) (internal
quotation marks and citations omitted) . A claim is facially
plausible when the pleaded facts "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. Plausibility requires "more than a sheer
8
possibility that a defendant has acted unlawfully," but it is not
a "probability requirement." Id.
At the Rule 12 (b) (6) 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. Browning v.
Clinton, 292 F.3d at 242. However, the court does not accept
"inferences drawn by plaintiff if such inferences are unsupported
by the facts set out in the complaint." Id. (internal quotation
marks and citations omitted). Similarly, the court need not accept
plaintiff's legal conclusions simply because they are "cast in the
form of factual allegations." Id. (internal quotation marks and
citations omitted) . "Threadbare recitals of a cause of action's
elements, supported by mere conclusory statements," are
insufficient to survive a motion to dismiss. Iqbal 556 U.S. at
678.
In addition to the complaint, the court may consider other
sources, such as "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, Inc., 551 U.S. at 322)
(internal quotation marks omitted) .
9
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." Montgomery v. Chao, 546 F.3d 703, 706, (D.C. Cir.
2008)). To prove unlawful retaliation, a plaintiff must show: (1)
that she engaged in protected activity; (2) that the employer took
a materially adverse action against her; and (3) that the employer
took the action "because" the employee engaged in protected
activity. McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir .
2012). "To survive [a] . . motion to dismiss, [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
3 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).
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 Adverse if it Causes
Objectively Tangible Harm
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." Burlington N. &'Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). To be materially
adverse, an action must cause "objectively tangible harm," which
cannot be "unduly speculative." Bridgeforth v. Jewell, 721 F.3d
661, 663 (D.C. Cir. 2013) (internal citation and quotation marks
4 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.
11
omitted); see also Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir.
2009) (failure to promote is not a materially adverse action where
it does not result in "objectively tangible harm") ; Wiley v.
Glassman, 511 F.3d 151, 160-61 (D.C. Cir. 2007) (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, reassignment with significantly different
responsibilities, or a decision causing significant change in
benefits." Bridgeforth, 721 F.3d at 663. However, materially
adverse actions are not limited to actions that occur in the
workplace or are directly related to the terms of employment.
Burlington N., 548 U.S. at 63-64 (citing Rochon v. Gonzales, 438
F.3d 1211, 1213 (D.C. Cir. 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 period of paid administrative leave, while an
investigation is ongoing, can never constitute a materially
adverse action. Mot. to Dismiss at p. 9. Plaintiff responds that
12
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, and neither party has identified a case directly on
point. 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 to total 19 months while an internal
investigation was conducted, is not an adverse 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 court's
dismissal of plaintiff's Title VII claims); Brown v. Georgetown
Univ. Hosp. Medstar Health, 828 F. Supp. 2d 1, 9 (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 leave constitutes an
13
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. See Joseph v. Leavitt, 465 F.3d 87,
90-91 (2d Cir. 2006) (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) (placement on paid leave is not
an adverse action) . Furthermore, the Court of Appeals for the
Second Circuit has addressed 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. There, an employee was arrested for felony assault and
subsequently placed on paid administrative leave by his employer.
Id. at 88-89. While the criminal charges were still pending, his
employer tried to initiate its own investigation of what
transpired, but the employee refused to cooperate on the advice of
14
counsel. Id. at 89. Ultimately, the criminal charges were
dropped, but rather than reinstate the employee, the employer
restarted its investigation and kept the employee on paid
administrative leave for an additional five months until the
investigation was completed. Id.
The court held that the failure to immediately reinstate the
employee following dismissal of the assault charge, who was being
paid, was not an adverse action. Id. at 91-93. The court
recognized that the agency had an independent interest in
investigating the truth of the allegations, even if there was
insufficient evidence to prove, beyond a reasonable doubt, that
the employee had committed a crime. Id. at 92. The court further
found that the agency's 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 there was no adverse action as the plaintiff could not
identify any material harm resulting from the failure to reinstate
him. Id. at 92-93.
The only contrary authority is Richardson. 160 F. Supp. 3d
88. There, the court held that placement on 39 days of paid
administrative leave constituted an adverse employment action
because: it was of "unusually long duration"; and the "unusual
nature" of the conditions of the employee's leave affected the
15
terms of her employment. Id. at 118. Specifically, 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 to work, but that other terms of her
administrative leave effectively prevented her from completing
these tasks. Id. 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 a "lengthy suspension", the court held that
plaintiff's administrative leave created "objectively tangible
harm" and was therefore an adverse employment action. Id. at 118.
In light of this near-universal 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. Compare Bridgeforth, 721
F.3d at 663 (retaliation claim requires "objectively tangible
16
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, the Court holds that the decision not to
reinstate Plaintiff from paid administrative leave immediately
following his acquittal was not a materially adverse action because
it did not cause him any objectively tangible harm. Plaintiff's
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 found not
guilty on November 20, 2014. And on December 19, 2014, the agency
issued the Proposal to 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. See Complaint ~
19. 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
from the terms of his administrative leave. See 160 F. Supp. 3d
at 118.
To the extent that Plaintiff argues that the failure to
reinstate him is a materially adverse action because it was
unreasonable or unjustified, that argument also fails. 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. For example,
Plaintiff does not allege that FHFA failed to investigate the
charges against him with "reasonable diligence," nor does he allege
18
any facts which would support such an inference. See Id. The
Government undoubtedly had an independent interest 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. Consequently, it is not a
materially adverse action, and he 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 at p. 10-11. Plaintiff
19
..
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. Opp'n at p. 3.
A Proposal to Remove ordinarily does not constitute a
materially adverse action. See Knight v. Mabus, 134 F. Supp. 3d
348, 357 (D.D.C. 2015) (Proposals to Remove do not "amount to
adverse employment actions because no 'tangible harm' or
'materially adverse consequence' follow[] directly from them"
(quoting Boykin v. England, 02-cv-0950, 2003 WL 21788953, at *5
(D.D.C. 2003))). A Proposal to Remove is just that, a proposal;
by its very nature it does not effectuate the removal of an
employee. Id.; see also Baloch v. Kempthorne, 550 F.3d 1191, 1199
(D.C. Cir. 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) . It is "essentially a precursor" to
the final decision to remove the employee. Boykin, 2003 WL
20
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 supporting
such an inference. 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 Mot. to Dismiss at p.
11. 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,
6 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)).
7 That Plaintiff was kept on paid administrative leave as a result
of its issuance is insufficient for the reasons discussed above.
21
2015, meaning that no objectively tangible harm could possibly
result because no final decision had been made. See 5 C.F.R. §
752.404 (notice of proposed removal is prerequisite to removing
federal employee) .
To be 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: Plaintiff's real complaint is not that FHFA proposed to
fire him, but that he was, in fact, fired. Yet, Plaintiff's
challenge to his ultimate removal is not before this Court, but
instead is currently pending before the MSPB. Complaint ~ 24.
See Knight, 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
8 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.
23