Green v. Sessions

• Decision Date: 01 May 2018
• Docket Number: 1:17-cv-01365-LMB-TCB
• Court: U.S. District Court — Eastern District of Virginia
• Parties: DAVID GREEN, JR., Plaintiff, v. JEFFERSON B. SESSIONS III, Attorney General, U.S. Department of Justice, et al., Defendants.

DAVID GREEN, JR., Plaintiff, v. JEFFERSON B. SESSIONS III, Attorney General,U.S. Department of Justice, et al., Defendants.

1:17-cv-01365-LMB-TCB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

May 1, 2018

MEMORANDUM OPINION

Before the Court are the defendants' Motions to Dismiss for Lack of Jurisdiction and for Failure to State a Claim [Dkt. Nos. 26 and 27] ("Defs. Mts. Dismiss"), to which plaintiff David Green, Jr. ("plaintiff" or "Green"), who is pro se, has filed an opposition, [Dkt. No. 30] ("Pl. Opp'n"). The defendants have filed a reply [Dkt. No. 31] ("Defs. Reply"), and the Court finds that oral argument will not assist the decisional process. For the reasons that follow, the defendants' motions will be granted, and this civil action will be dismissed with prejudice.¹

I. BACKGROUND

Green, a former employee of the United States Department of Justice Executive Office of Immigration Review ("EOIR"), has filed a six count Complaint against Jefferson B. Sessions III, Attorney General of the United States ("Sessions"); Katherine H. Reilly, Acting DeputyDirector, EOIR ("Reilly"); Terryne Murphy, former Chief Information Officer, EOIR ("Murphy"); and Ana Kocur, former Deputy Director, EOIR ("Kocur") (collectively, the "defendants"), alleging in Count 1 race and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Compl. [Dkt. No. 1] ¶¶ 1, 72-102; in Count 2 age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), id. ¶¶ 1, 103-04; in Count 3 retaliation for engaging in protected activity under Title VII and the ADEA, id. ¶¶ 1, 105-06; in Count 4 disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the "Rehabilitation Act"), id. ¶¶ 1, 107-15; in Count 5 hostile work environment under Title VII, the ADEA, and the Rehabilitation Act, id. ¶¶ 1, 116-17; and in Count 6 retaliation for engaging in whistleblower activity, id. ¶¶ 1, 118-25.

Green seeks $300,000 in compensatory damages for "the continuing physical and emotional pain, severe depression, continued impact to health [sic] disability, loss of health insurance, embarrassment, humiliation, mental anguish, inconvenience, career loss, continued loss of prospective employment opportunities due to negative performance record, and the resultant negative credit rating, loss of professional reputation, continued loss of personal assets (apartment, house, cars, TSP), federal taxes debt incurred due to abrupt change in income, severe damage to credit rating changing from excellent to poor, continued negative impact on family and friends, and the continued loss of enjoyment of life." Id. at 51. He also seeks front pay at the GS-15 pay level from the date he was terminated until he reaches the age of 65, and back pay commensurate with his higher rating, if his performance review is corrected, and for Absent Without Leave ("AWOL") time. Id. at 51-52. Green further seeks an order declaring that the defendants violated his rights under several federal anti-discrimination statutes; reinstatement to federal service with positive references; a requirement that any employment offers includeretroactive seniority; and a corrected prior performance review for 2014-2015, among other requested relief. Id.

A. Green's Employment History

The following facts are uncontested as they are included either in Green's Complaint or in the numerous exhibits attached to his Complaint. When Green, who is an African American male, was terminated, he was 51-years old. He was hired by the EOIR on March 13, 2011 as the Chief of Operational Services, GS-14, in the Information Resource Management ("IRM") department. Compl. [Dkt. No. 1] ¶¶ 6, 10. On October 12, 2012, Green was promoted to Deputy Chief Information Officer, GS-15. Id. ¶ 14. He reported directly to Murphy once she became EOIR Chief Information Officer in May 2013, and she reported directly to Kocur, EOIR's then Deputy Director. Id. ¶¶ 13, 16. On July 31, 2014, as a result of Murphy reorganizing the IRM department, Green became the Director of Operations, with "primarily the same" duties and continued at the GS-15 level. Id. ¶ 20; Ex. C6 [Dkt. No. 1-32] ¶ 3.

Annual evaluations were reflected in Performance Work Plans ("PWP"). For Green's position, his PWP had six "critical" elements: (1) communication; (2) organization, planning and coordinating, (3) knowledge management; (4) customer support and professionalism; (5) leadership, integrity and management proficiency; and (6) accountability for organizational results. See, e.g., Ex. A3 [Dkt. No. 1-3] 2-14. Each critical element had a five-level scale ranging from "unacceptable," "minimally successful," "successful," "excellent," to "outstanding." Id. From 2011 until 2014, Green received overall "successful" to "outstanding" annual and semi-annual performance reviews, Compl. [Dkt. No. 1] ¶¶ 11, 15; however, during a mid-year review in November 2013, Murphy expressed concerns regarding Green's communication skills by commenting that his "inability or unwillingness to respond has resulted in particular findings forthe EOIR which will require deliberate and swift actions by [the agency]," Ex. A4 [Dkt. No. 1-4] 4. She also commented on his leadership skills by questioning his failure to verify information from a contractor providing IT services which resulted in a "significant outage [leaving the] EOIR without email for six business days," and wrote that similar issues "occurred at other times in the past several months." Id. In Green's April 2013 to March 2014 annual review, Murphy stated that he "performed at an overall successful level of performance," and had recently made "significant improvements in many areas of communication and management proficiency," id. at 5; however, he continued to have problems in those areas. For example, on September 12, 2014, Murphy sent Green an email advising that "[he] must learn to work with [his] colleagues. Negative attitudes and obstructionist behavior when [he] must coordinate and collaborate with [his] colleagues to get things done will no longer be tolerated...." Pl. Addt'l Exs. [Dkt. No. 14] 39. Murphy later sent more emails to Green again expressing frustration with his performance, and on November 6, 2014 she wrote "I am tiring of dealing with why you don't know what's going on in your area. Figure it out and fix your non-responsiveness and lack of awareness." Ex. J4 [Dkt. No. 1-58] 2.

On December 15, 2014, in a six-page letter, Murphy placed Green on a 90-day Performance Improvement Plan ("PIP"). Compl. [Dkt. No. 1] ¶ 29. In her letter, Murphy explained to Green that his performance for critical element one, communication, and critical element five, leadership-related skills, was at an "unacceptable level." Pl. Addt'l Exs. [Dkt. No. 13] 154-59. Regarding the communication element, Murphy's letter explained:

Specifically, you are failing to communicate with your staff, your colleagues, and in some cases me, your supervisor. I have received numerous complaints about your lack of responsiveness to requests for information from your colleagues, your staff, and our customers. For example, your staff, one by one, has complained to me about your failure to provide information and more importantly, direction, on what to do about specific issues. Your colleagues have come to me to complain onnumerous occasions about how they receive no response or even acknowledgment from you regarding the questions they ask you regarding important matters that concern the budget request for your area as well as your lack of participation in projects. One specific example occurred during the budget planning cycle when your contractor required your guidance to establish what resources to plan for and submit to us for our overall budget request. Without any guidance from you, and after the deadline passed, your contractor came to your colleague and me to resolve the concerns so that the budget planning process could continue. Our component's ability to accurately reflect our needs in our budget requests is paramount to our overall success as an organization. Every senior member of this staff who holds the responsibility to communicate and collaborate within our leadership team knows this and readily owns this responsibility, except you.

Numerous other examples have been witnessed by all of the senior leadership within IRM, both government and contractor, during our most important bi-weekly collaboration meetings—The Technical exchange, the Change Management Board, and the Project Investment Review Committee. Repeatedly, you arrive more than ten minutes late to each meeting and say nothing during the meetings. If I do not directly ask you a question or direct you to take an action item, you add no value to the collaboration. You take no initiative, nor own any issue that is being discussed that involves your area—Operations—which nearly every issue we discuss concerns. Your team of contractors is routinely looking for guidance and direction from the government because you fail to provide any. When information, such as the status of an issue, is provided by your contractor staff, which you should communicate with your colleagues, you do not share it. It is not until we are in the meetings with your contractor staff present that your colleagues and I learn more information. Id. at 156.

For the leadership-related skills element, Murphy wrote:

As the Director of Operations it is your singular responsibility to provide consistent guidance and direction to your staff, government and contractor, on a myriad of issues and challenges that an IT operation and its projects typically entail.

A specific example is the Service Manager Project you are supposed to be leading as a Project Sponsor. On two occasions where I attended meetings in the last several weeks for this important effort to outfit your staff with a

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