Mahoney v. Donovan

• Decision Date: 14 November 2011
• Docket Number: Civil Action No. 10–1703 (JEB).
• Citation: 824 F.Supp.2d 49
• Parties: J. Jeremiah MAHONEY, Plaintiff, v. Shaun DONOVAN, Secretary of U.S. Department of Housing and Urban Development, et al., Defendants.
• Court: U.S. District Court — District of Columbia

824 F.Supp.2d 49

J. Jeremiah MAHONEY, Plaintiff,

v.Shaun DONOVAN, Secretary of U.S. Department of Housing and Urban Development, et al., Defendants.

Civil Action No. 10–1703 (JEB).

United States District Court, District of Columbia.

Nov. 14, 2011.

John F. Karl, Jr., McDonald & Karl, Washington, DC, for Plaintiff.

Addy Schmitt, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

Plaintiff J. Jeremiah Mahoney is an Administrative Law Judge in the U.S. Department of Housing and Urban Development. In this lawsuit he asserts two types of claims against Defendants HUD, his supervisor David Anderson, and the Office of Personnel Management. He first avers that HUD and Anderson unlawfully retaliated against him through both discrete actions and the creation of a hostile work environment after he had participated in an Equal Employment Opportunity investigation of a complaint filed by a fellow ALJ. His second set of claims is more novel. In these, he alleges that all Defendants violated the Administrative Procedure Act by infringing on or failing to protect his judicial independence.

Defendants have now filed a Motion to Dismiss and an Alternative Motion for Partial Summary Judgment. Although Plaintiff's causes of action are varied, they all meet with the same fate. More specifically, because some of his retaliation claims were not exhausted, others do not amount to materially adverse employment actions, and the incidents alleged do not, as a matter of law, constitute a hostile work environment, Plaintiff's counts for retaliation must fail. As he lacks standing to sue for the alleged APA violations, those, too, will be dismissed.

I. BackgroundA. Retaliation Claims

Both Plaintiff and Alexander Fernández have been employed as HUD ALJs since September 21, 2008. Compl., ¶ 29. On November 4 of that year, Judge Fernández filed an informal complaint of discrimination with HUD's EEO Office relating to Defendant Anderson's alleged failure to accommodate his medical conditions. Id., ¶¶ 30–32. Anderson is the Director of HUD's Office of Hearings and Appeals (OHA) and the first-level supervisor of both Plaintiff and Judge Fernández. Id., ¶¶ 10–12. Plaintiff was a witness to some of the incidents at issue in Judge Fernández's complaint, and he believed Judge Fernández was being unlawfully discriminated and retaliated against. See id., ¶¶ 33–35. Plaintiff informed supervisors about, and provided statements to the EEO officers investigating, Judge Fernández's complaint. See id., ¶¶ 36–37. Judge Fernández has since proceeded with his discrimination and retaliation claims in district court; that case is currently pending before Judge Richard J. Leon here in Washington. See id., ¶ 34; Fernandez v. Donovan et al., Civ. Act. No. 10–185 (D.D.C. filed Feb. 2, 2010).

Plaintiff alleges that Defendants HUD and Anderson retaliated against him for participating in the EEO investigation of Judge Fernández's complaint when they took several steps that are independently actionable and that, considered cumulatively, created a hostile work environment. Plaintiff has identified five incidents of alleged retaliation, two of which occurred in Spring 2009. See Opp. at 19–29. First, the Docket Clerk was moved to a building four blocks from the building in which the ALJs worked. See Compl., ¶ 40. Plaintiff “pointed out the impracticality of this arrangement considering the hands-on nature of Docket Clerk duties,” but Anderson declined to reconsider or appoint an Acting Docket Clerk. See id., ¶¶ 41–43. Second, when Plaintiff asked Anderson whether he could apply for a telework agreement, “Anderson said Judge Mahoney could apply but a telework agreement would not be approved.” Id., ¶ ¶ 53–54.

The other three incidents took place in December 2009. First, on December 15, Anderson hosted “an office holiday party” during business hours at a private club to which only “selected employees” were invited. Id., ¶¶ 56–57. Plaintiff was neither informed of nor invited to the party. Id., ¶ 57. Second, on December 18, Anderson told Plaintiff not to speak with HUD's Office of Ethics after he had inquired about the propriety of two law clerks' working for both OHA and HUD's Office of Public and Indian Housing (PIH). See id., ¶¶ 49–51. Third, on December 31, Anderson responded by email to an earlier email from Plaintiff regarding the incident with the Docket Clerk. Id., ¶¶ 44–47. Anderson's email stated, in part:

[F]uture challenges to my decision not to appoint an Acting Docket Clerk may be viewed as insubordinate conduct, as improper interference with my management responsibilities as OHA Director, and/or as interference with the exercise of my discretion as supervisor, and may result in the consideration of appropriate disciplinary action against you.

Id., ¶ 47.

B. APA Claims

Plaintiff's APA claims relate to a different set of incidents and HUD practices that he alleges interfered with the decisional independence guaranteed to ALJs by the APA. First, he contends that Anderson “failed to consistently assign cases to him in a rotating manner” and instead “selectively assigned cases to judges based upon political considerations and/or the Secretary's perceived interests.” Id., ¶ 61. Second, Plaintiff asserts that Anderson engaged in ex parte communications with parties in cases pending before Plaintiff without his knowledge or consent. See id., ¶¶ 62–65. Third, despite his and Judge Fernández's objections, Plaintiff maintains that Anderson established a practice of releasing Notices of Election in Fair Housing Act cases to the Department of Justice before they were officially released by the ALJs, thereby providing DOJ with advance notice of cases that were soon to be filed in district court. See id., ¶¶ 66–73. Fourth, he alleges that Anderson prevented the Docket Clerk from providing Plaintiff with “docket numbers for the more than 100 Mortgagee Review Board ... cases that had recently been directed to the [Office of Administrative Law Judges (OALJ) ].” Id., ¶¶ 74–76. Fifth and finally, he claims that HUD failed to supply its ALJs with legal-research resources for more than one month during Summer 2009. See id., ¶¶ 83–85.

On July 1, 2009, Plaintiff wrote a letter to John Berry, the Director of OPM, asking that he “exert OPM's enforcement authority to investigate and correct pervasive interference with judicial independence sanctioned by HUD senior leadership.” Id., ¶¶ 86–87. Jeffrey Sumberg, an OPM official, responded a few months later. Id., ¶ 88. When Plaintiff and Judge Fernández met in person with Sumberg on January 13, 2010, he “expressed surprise and concern” and indicated he would discuss the issues raised by the ALJs with OPM leadership. See id., ¶¶ 89–92. On April 28, 2010, Sumberg informed Plaintiff and Judge Fernández that, “based upon advice of the OPM General Counsel, OPM would do nothing because of Judge Fernández's pending litigation.” Id., ¶ 94.

C. Procedural History

Plaintiff made a request for EEO counseling and filed an informal complaint of discrimination with HUD's EEO Office on January 12, 2010. Id., ¶ 18. He then filed a formal charge of discrimination on March 11. Id., ¶ 19. On June 15, Plaintiff was notified that his complaint had been dismissed for failure to state a claim, and he received the Notice of Dismissal in July. Id., ¶¶ 23–24. He filed the Complaint initiating the instant lawsuit on October 5. Defendants have now filed a Motion to Dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6), along with an Alternative Motion for Partial Summary Judgment on the exhaustion issue only.

II. Legal StandardA. Motion to Dismiss

In evaluating Defendants' Motion to Dismiss, the Court must “treat the complaint's factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). This standard governs the Court's considerations of Defendants' Motion under both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader”); Walker v. Jones, 733 F.2d 923, 925–26 (D.C.Cir.1984) (same). The Court need not accept as true, however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)) (internal quotation marks omitted).

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails to “state a claim upon which relief can be granted.” Although the notice pleading rules are “not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), “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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation omitted). Plaintiff must put forth “factual content that allows the court to draw the reasonable inference that the...