34 F.Supp.3d 100 (D.D.C. 2014), C. A. 12-1290 (CKK), Terveer v. Billington

Docket Nº:Civil Action 12-1290 (CKK)
Citation:34 F.Supp.3d 100
Party Name:PETER J. TERVEER, Plaintiff, v. JAMES H. BILLINGTON, Librarian, Library of Congress, Defendant
Attorney:Civil Action No. 12-1290 (CKK) For PETER J. TERVEER, Plaintiff: Christopher Mayfield Brown, LEAD ATTORNEY, ACKERMAN BROWN, PLLC, Washington, DC; Thomas J. Simeone, SIMEONE & MILLER, LLP, Washington, DC. For JAMES HADLEY BILLINGTON, In his official capacity as Librarian of Congress, Defendant: Joh...
Case Date:March 31, 2014
Court:United States District Courts, District of Columbia

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34 F.Supp.3d 100 (D.D.C. 2014)

PETER J. TERVEER, Plaintiff,


JAMES H. BILLINGTON, Librarian, Library of Congress, Defendant

Civil Action No. 12-1290 (CKK)

United States District Court, D. Columbia

March 31, 2014

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For PETER J. TERVEER, Plaintiff: Christopher Mayfield Brown, LEAD ATTORNEY, ACKERMAN BROWN, PLLC, Washington, DC; Thomas J. Simeone, SIMEONE & MILLER, LLP, Washington, DC.

For JAMES HADLEY BILLINGTON, In his official capacity as Librarian of Congress, Defendant: John G. Interrante, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.


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Plaintiff Peter J. Terveer filed suit on March 7, 2013, against his employer, Defendant James H. Billington, Librarian for the Library of Congress, alleging Defendant created a hostile work environment, denied him a within grade salary increase, and constructively discharged him on the basis of sex and religion and in retaliation for his protected activities in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See Pl.'s Am. Compl. ¶ ¶ 55-87, ECF No. [26]. Plaintiff also alleges an independent claim of constructive discharge. Id. ¶ ¶ 88-92. In addition, Plaintiff alleges that Defendant's discriminatory acts violated his rights under the Due Process and Equal Protection clauses of the Fifth Amendment, the Library of Congress Act, 2 U.S.C. § 140, and various Library of Congress policies and regulations prohibiting harassment and retaliation based on religion and sexual orientation. See id. ¶ ¶ 93-114. Presently before the Court is Defendant's Motion to Dismiss all eight counts of Plaintiff's Complaint. See Def.'s Mot. to Dismiss, ECF No. [27]. Upon consideration of the pleadings,1 the relevant legal authorities, and the record for purposes of a motion to dismiss, the Court finds that Plaintiff has sufficiently pled sex discrimination, religious discrimination, and retaliation claims under Title VII. However, to the extent Plaintiffs claims are based on his constructive discharge, they must be dismissed because Plaintiff failed to exhaust these claims. By contrast, the Court finds that Defendant has waived any exhaustion defense as to Plaintiffs discrimination and retaliation claims based on the denial of his within-grade salary increase. Finally, as Title VII is the exclusive remedy for federal government employees' claims of employment discrimination and the Court finds on the present record that Plaintiff has pled claims cognizable under Title VII, the Court dismisses without prejudice Plaintiffs constitutional claims, as well as Plaintiffs claims under the Library of Congress Act and Library of Congress policies and regulations. Accordingly, for the reasons stated below, Defendant's Motion is GRANTED IN PART and DENIED IN PART.


A. Factual Background

For the purposes of Defendant's Motion to Dismiss, the Court presumes the following facts pled in Plaintiffs' Amended Complaint to be true, as required when considering a motion to dismiss. In February 2008, Plaintiff was hired as a Management Analyst in the Auditing Division of the Library of Congress Office of the Inspector General (" OIG" ). Id. ¶ 1. Plaintiffs first-level supervisor was John Mech (" Mech" ), a religious man who was accustomed to making his faith known in the workplace. Id. ¶ ¶ 1, 8. On June 24, 2009, Mech told Plaintiff that " putting you . . . closer to God is my effort to encourage you to save your worldly behind." Id. ¶ 8. Plaintiff became close with Mech and Mech's family, including his daughter. Id. ¶ ¶ 9-10. In August 2009, Mech's daughter learned that Plaintiff is homosexual. Id.

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¶ ¶ 10-11. Shortly thereafter, Plaintiff received an email from Mech mentioning his daughter and containing photographs of assault weapons along with the tagline " Diversity: Let's Celebrate It." Id. ¶ 12. Mech also began engaging in religious lectures " at the beginning of almost every work-related conversation" " to the point where it became clear that Mech was targeting [Plaintiff] by imposing his conservative Catholic beliefs on [Plaintiff] throughout the workday." Id. Plaintiff further alleges that after learning that Plaintiff was homosexual, Mech no longer gave Plaintiff detailed instructions for assignments, but would instead give Plaintiff ambiguous instructions without clear communication of what Mech or OIG management expected. Id. ¶ 13. In December 2009, Mech began assigning Plaintiff assignments related to a large audit project that Plaintiff alleges were beyond his experience level. Id. ¶ 16. Normally, Plaintiff alleges, a project of such size and complexity would be staffed with six employees, take more than a year to complete, and be initiated by a New Project Memorandum. Id. Instead, Mech held a brief meeting to discuss the format of the project and assigned Plaintiff as the sole employee on the project. Id. Mech also began assigning Plaintiff more work in addition to the audit project. Id. ¶ 17.

On June 21, 2010, Mech called an unscheduled meeting, lasting more than an hour, for the stated purpose of " educating [Plaintiff] on Hell and that it is a sin to be a homosexual . . . [, that] homosexuality was wrong[,] and that [Plaintiff] would be going to Hell." Id. ¶ 18. Mech began reciting Bible verses to Plaintiff and told Plaintiff " I hope you repent because the Bible is very clear about what God does to homosexuals." Id. Four days later, on June 25, 2010, Plaintiff received his annual review from Mech. Id. ¶ 20. Plaintiff found the review did not accurately reflect the quality of his work and believed the review was motivated by Mech's religious beliefs and sexual stereotyping. Id. That day, Plaintiff confronted Mech regarding the purpose of his religious lecturing and " the unfair treatment that began after Mech learned [Plaintiff] was homosexual." Id. Mech was greatly angered by Plaintiff's questioning, vehemently denied that Plaintiff's homosexuality and personal religious views had impacted his impartiality with regard to Plaintiff's work and performance, and accused Plaintiff of trying to " bring down the library." Id. ¶ 21.

On June 29, 2010, Plaintiff met with Nicholas Christopher (" Christopher" ), Mech's immediate supervisor, and told Christopher that " Mech had been lecturing him about religion and that he believed he was the victim of discrimination in the workplace because his sexual orientation did not conform to Mr. Mech's religious beliefs." Id. ¶ 24. Christopher told Plaintiff that, in his opinion, employees do not have rights. Id. ¶ 25. Christopher did not take any remedial action, did not contact the Library's Equal Employment Opportunity Office--the Office of Opportunity Inclusiveness and Compliance (" OIC" )--and did not advise Plaintiff of appropriate complaint procedures. Id.

Plaintiff alleges that in response to his allegations of discrimination, Mech placed Plaintiff directly under his supervision for the audit project and informed Plaintiff that he would be subjected to heightened scrutiny. Id. ¶ 26. Mech also began verbally assaulting Plaintiff whenever Plaintiff sought clarification on his work assignments. Id. In December 2010, Mech prepared an evaluation of the audit project, which Plaintiff alleges broke with standard operating procedure because the project was not complete. Id. ¶ 27. Mech's review of the project was " extremely negative in every category." Id.

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Plaintiff discussed the review with Mech and asked Mech if he continued to refuse to accept Plaintiff's homosexuality. Id. In response, Plaintiff alleges Mech stated: " I don't care, I had a conversation with you--that is my business--but this has put you in a position where you are under a closer watch, and you are not to question me-- this is how it is. Regardless, you do not question management." Id. Plaintiff further alleges that Mech stated that he was " damn angry" at Plaintiff for threatening to bring a claim for wrongful discrimination and harassment and said to Plaintiff: " You were going to string me out to dry, made accusations, put me in a position risked (sic) my job and position, and now this is the result. You are to do as you are told and not question me or management in this office. You do not have rights, this is a dictatorship." Id.

In February 2011, Mech issued another negative performance evaluation based upon allegedly incorrect facts and mischaracterizations. Id. ¶ 29. On March 9, 2011, Mech notified Plaintiff that he was being placed on a " 90-day written warning." Id. ¶ 31. A negative report following the review period would result in a denial of Plaintiff's level GS-11 within-grade-increase. Id. On March 16, 2011, Plaintiff met with Naomi Earp (" Earp" ), Director of the OIC, and initiated the Equal Employment Opportunity (" EEO" ) complaint process. Id. ¶ 34. Earp, who was familiar with Plaintiff's work, believed Plaintiff would benefit from a transfer from his current office, OIG, to the OIC. Id. ¶ 35. Earp asked Christopher if OIG would approve the transfer, but Christopher responded that Plaintiff was on track to be terminated within six months and that he would not approve the transfer. Id. Plaintiff does not now claim this denial of transfer as an adverse employment action. See Pl.'s Opp'n. at 14 n.1.

On June 24, 2011, Mech submitted his report following the 90-day written warning period finding Plaintiff's work to be only minimally successful and denied his within-grade-increase. Id. ¶...

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