Doe v. Am. Fed'n of Gov't Emps.

• Citation: 554 F.Supp.3d 75
• Decision Date: 11 August 2021
• Docket Number: Civil Action No. 20-1558 (JDB)
• Parties: John DOE #1, et al., Plaintiffs, v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

554 F.Supp.3d 75

John DOE #1, et al., Plaintiffs,

v.AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Defendants.

Civil Action No. 20-1558 (JDB)

United States District Court, District of Columbia.

Signed August 11, 2021

Marlene Denise Morten, Unfoldment Law Offices, Washington, DC, Donna H. Clancy, Pro Hac Vice, The Clancy Law Firm P.C., New York, NY, for Plaintiffs Annette Wells, Jocelynn Johnson.

Marlene Denise Morten, Unfoldment Law Offices, Washington, DC, for Plaintiff Rocky Kabir.

Devki Kaur Virk, Elisabeth Mary Oppenheimer, Bredhoff & Kaiser, PLLC, Washington, DC, for Defendant American Federation of Government Employees.

Daniel Ray Francis, Pro Hac Vice, Dan Francis Law Firm PLLC, Lexington, NC, Hans David Leibensperger, Berman Sobin Gross Feldman & Darby LLP, Lutherville, MD, for Defendant Jeffrey David Cox, Sr.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Jeffrey David Cox resigned as National President of the American Federation of Government Employees ("AFGE") union in February 2020 following allegations of misconduct while in office. Four months later, plaintiffs filed this lawsuit against Cox, AFGE, and thirteen AFGE officials and high-level staff members (the "Individual AFGE Defendants"), asserting claims under both federal and state law. The crux of plaintiffs’ complaint is that Cox engaged in discriminatory and sexual misconduct during his tenure as President and that union leadership failed adequately to prevent his behavior and take remedial action against him for his misdeeds.

Three motions are now pending before the Court: (1) plaintiffs’ motion to disqualify counsel for the Individual AFGE Defendants; (2) AFGE and the Individual AFGE Defendants’ motion to dismiss the second amended complaint for lack of subject-matter jurisdiction and for failure to state a claim; and (3) Cox's motion to dismiss the first and second amended complaints for insufficient service of process and for the reasons spelled out in AFGE and the Individual AFGE Defendants’ motion to dismiss. As explained below, the Court will deny plaintiffs’ motion to disqualify counsel for the Individual AFGE Defendants, deny Cox's motion to dismiss the first and second amended complaints for insufficient service of process, and grant defendants’ motions to dismiss as to all claims against the Individual AFGE Defendants, and nearly all claims against AFGE and Cox.

Background

At the pleading stage, district courts accept as true a plaintiff's factual allegations, see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and thus the Court recites the facts as presented in plaintiffs’ second amended complaint.¹ The Court will provide only some limited background to start, and will detail additional facts as they become relevant.

AFGE is the largest federal employee union in the United States. Second Am. Compl. ("SAC") [ECF No. 32] ¶ 86. AFGE is governed by the National Executive Council ("NEC"), which is comprised of several elected officials, including the National President, the National Secretary-Treasurer ("NST"), and several National Vice Presidents, most of whom represent specific geographic districts across the country. Id. ¶¶ 87, 89. Ten of the Individual AFGE Defendants in this lawsuit are or were members of the NEC. Id. ¶ 91. The other three Individual AFGE Defendants are AFGE's General Counsel, Deputy General Counsel, and Chief of Staff.² Id. ¶¶ 93, 99, 106. The twelve plaintiffs in this lawsuit are current or former AFGE employees, elected officials for local AFGE unions, AFGE members, employees of AFGE contractors, and family members.³ Id. ¶¶ 58–84.

In fall 2019, news reports began circulating that Cox had sexually harassed multiple AFGE employees during his tenure as National President, id. ¶ 330; Ex. 4 to First Am. Compl. ("FAC") [ECF No. 11-5], and that AFGE had failed for years to address complaints about inappropriate behavior by Cox and other elected union officials, see SAC ¶¶ 333–34; Ex. 9 to FAC [ECF No. 11-10]. Following these reports, Cox took a leave of absence from AFGE, and defendant Kelley assumed Cox's responsibilities as National President on an interim basis. SAC ¶ 332. Shortly thereafter, AFGE retained an outside law firm named Working Ideal to conduct an independent investigation into Cox's misconduct and a systemic evaluation of AFGE's workplace harassment policies. See id. ¶ 335; Ex. 1 to FAC [ECF No. 11-2].

On February 13, 2020, AFGE member and plaintiff Wells filed internal disciplinary charges against Cox under the AFGE National Constitution, asserting that Cox had sexually assaulted, sexually harassed, and racially discriminated against her son, plaintiff Doe #1, for years. SAC ¶ 336; Ex. 10 to FAC [ECF No. 11-11]. Doe #1 had worked for Capitol Chauffeur Service ("CCS"), under CCS's contract with AFGE, and had served as Cox's principal limo driver for over a decade. See SAC ¶¶ 13, 59. Wells also alleged that Cox unlawfully spent AFGE money for personal use by hiring Doe #1 to take Cox to bars and strip clubs and by using the company-provided limo services to abuse Doe #1 and others. See id.

In connection with her charges, Wells demanded that the NEC take various actions, including (1) securing an "independent, outside accounting of all monies and charges paid by ... Cox for private car services," (2) "find[ing] Mr. Cox guilty for grossly violating his duties by engaging in sexual harassment, sexual abuse and racial discrimination," and (3) "remov[ing] Mr. Cox as President and as an AFGE member by the last date of the NEC February 2020 meeting." Ex. 10 to FAC at 4, 7. Wells also warned that, if the NEC refused her requests, she would file breach-of-fiduciary-duty claims under section 501(b) of the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA"). Id. at 7–8. Two weeks later, with the NEC's approval, defendant Kelley entered into a secret separation agreement with Cox, which allowed Cox to resign from office without admitting guilt. SAC ¶¶ 5, 16.

Plaintiffs filed this lawsuit against AFGE, the Individual AFGE Defendants, and Cox on June 13, 2020, and have since amended their complaint twice to join additional parties and assert additional claims. In connection with the second amended complaint, the Court also granted plaintiff Wells leave to file two breach-of-fiduciary-duty claims under the LMRDA against all defendants save AFGE. See Mem. Op. & Order (Oct. 23, 2020) [ECF No. 42] at 2. That decision did not address the merits of the LMRDA claims, holding only that Wells had satisfied the two statutory prerequisites for bringing suit. See id. at 3–8.

The second amended complaint spans 139 pages and formally identifies eleven separate counts. But nearly every count contains several distinct claims, each asserted by a different plaintiff, which rest on a unique set of facts specific to that plaintiff. All told, the second amended complaint raises two types of federal claims—for breach of fiduciary duty under section 501(b) of the LMRDA and for discrimination under section 1981 of the Civil Rights Act of 1866—as well as a large swath of tort claims under the common law and the D.C. Human Rights Act ("DCHRA"). See SAC ¶¶ 821–945. Broadly speaking, the non-federal claims rest on allegations of assault, battery, sexual harassment, physical injury, intentional infliction of emotional distress, and discrimination based on race, sex, and religion by Cox and other AFGE officials.

There are now three pending motions before the Court. First, plaintiffs have moved to disqualify Bredhoff & Kaiser PLLC ("Bredhoff & Kaiser") as counsel for the Individual AFGE Defendants because the same counsel also represents AFGE. That motion also seeks to bar AFGE from paying the Individual AFGE Defendants’ legal fees in this lawsuit. Second, AFGE and the Individual AFGE Defendants have moved to dismiss the entire second amended complaint—except for plaintiff Johnson's section 1981 claim against AFGE—for lack of subject-matter jurisdiction and failure to state a claim. Finally, defendant Cox has moved to dismiss the first and second amended complaints for insufficient service of process. Cox's motion also incorporates wholesale the AFGE and the Individual AFGE Defendants’ motion to dismiss. All three motions have been fully briefed and are now ripe for consideration.⁴

Analysis

I. Plaintiffs’ Motion to Disqualify Counsel for the Individual AFGE Defendants⁵

Plaintiffs have moved to disqualify Bredhoff & Kaiser as counsel for the Individual AFGE Defendants on conflict-of-interest grounds because the same attorneys also represent AFGE.⁶ See Mem. in Supp. of Pls.’ Mot. to Disqualify Bredhoff & Kaiser as Counsel for Thirteen Named Defs. & Mot. to Strike Defs.’ Nov. 23, 2020 Mot. to Dismiss Filed by Bredhoff & Kaiser ("Pls.’ Mot. to Disqualify") [ECF No. 48] at 1. Plaintiffs argue that dual representation of AFGE and its officials is not permitted in cases like this one where the complaint charges union officials with breaching their fiduciary duties to the union. Id. at 5–6. As part of their motion, plaintiffs also request that this Court (1) order the Individual AFGE Defendants "to retain their own legal counsel at their own expense," (2) bar AFGE from paying the Individual AFGE Defendants’ "legal fees and costs ... in defending this litigation," (3) "strike" the motion to dismiss filed by Bredhoff & Kaiser from the record; (4) require the Individual AFGE Defendants "to file their separate responses to Plaintiffs’ second amended complaint" within fourteen days, and (5) order Bredhoff & Kaiser "to pay Plaintiffs’ attorneys’ fees and costs incurred in preparing this motion." Id. at 1–2.

Bredhoff & Kaiser deny the existence of any conflict of interest, emphasizing that no precedent "prohibit[s] a labor union ... from lending assistance (through the provision of counsel or otherwise)" to help "present or former union officers and employees ... secure, at the pleading stage, dismissal...