Marsha W. Yee v. Garland, Civil Action 21-1185 (ABJ)

CourtUnited States District Courts. United States District Court (Columbia)
PartiesMARSHA W. YEE, Plaintiff, v. MERRICK B. GARLAND, Attorney General of the United States, Defendant.
Decision Date21 April 2022
Docket NumberCivil Action 21-1185 (ABJ)

MARSHA W. YEE, Plaintiff,

MERRICK B. GARLAND, Attorney General of the United States, Defendant.

Civil Action No. 21-1185 (ABJ)

United States District Court, District of Columbia

April 21, 2022



Plaintiff Marsha W. Yee is an Assistant United States Attorney (“AUSA”) in the United States Attorney's Office for the District of Columbia. Compl. [Dkt. # 1] ¶ 1. She “alleges that the Department discriminated against her and continues to discriminate against her based on her race (Asian), sex (female), age (more than 40 years old) and/or prior protected activity.” Compl. ¶ 2. On August 13, 2021, defendant moved to dismiss her complaint, or in the alternative, for summary judgment. See Def.'s Mot. to Dismiss or, Alternatively, for Summ. J. [Dkt. # 7] (SEALED) (“Def.'s Mot.”). Plaintiff opposed the motion and moved pursuant to Fed. R. Civ. Proc. 56(d) to conduct discovery in advance of any ruling on the summary judgment motion. See Pl.'s Rule 56(d) Mot. and Opp. to Def.'s Mot. [Dkt. # 9] (“Pl.'s Opp.”). The motions are now fully briefed. See Reply Mem. in Supp. of Def.'s Mot. and Opp. to Pl.'s Opp. [Dkt. # 11] (“Def.'s Reply”); Reply in Further Supp. of Pl.'s Opp. [Dkt. # 14] (“Pl.'s Surreply”).

The Court will GRANT defendant's motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and for lack of jurisdiction under Rule 12(b)(1).


Plaintiff's claims concerning disparate treatment in the assignment of cases throughout her tenure in the Office do not allege the adverse action necessary to an actionable claim of discrimination or retaliation under Title VII or the ADEA, and plaintiff's allegations regarding the disciplinary action taken against her in 2020 do not allege sufficient facts to state a plausible claim that the action was either retaliatory or discriminatory. The Court also does not have jurisdiction over plaintiff's due process claim. In light of those rulings, it is not necessary to reach the arguments concerning Rule 56.


“Plaintiff has served as an AUSA since early 2016.” Compl. ¶ 9. She alleges that she “is the only female and only non-white person in the group of five AUSAs who started working in the same division during the same period, ” and that she “was and is the only Asian female AUSA in her division.” Compl. ¶¶ 10-11. In her opposition, plaintiff puts it more bluntly: “Plaintiff, an Asian female, was the token diversity hire in a sea of white men.” Pl.'s Opp. at 1.

Plaintiff alleges that “from the outset of her employment as an AUSA and continuing, management officials have assigned her more cases and/or more high-work cases with respect to case transfers and new cases.” Compl. ¶ 13. She states, “[u]pon information and belief, ” that on or about her first day as an AUSA, “a specific management official approved more high-work cases for transfer to plaintiff than to the two white male attorneys who shared the same start date.” Compl. ¶ 14. The complaint does not state whether the lawyers hired at the same time had comparable levels of prior experience. The same official allegedly made decisions about case transfers and new case assignments “through the end of December 2020, ” Compl. ¶ 16, while “a different management official” has been making those decisions since January 1, 2021. Compl. ¶ 17.


Plaintiff reports that her workplace “is the first and only work environment where plaintiff has heard another employee use the word ‘Chink.'” Compl. ¶ 18. Though plaintiff does not specify when this occurred, who made the comment, or in what context, she states that the employee who used the term was “a management official.” Compl. ¶ 18. She adds that “then-President Donald J. Trump's racist language, including ‘China virus,' ‘Chinese virus' and ‘Kung flu,' fostered an environment that condones racism against Asians.” Compl. ¶ 19.

Plaintiff alleges that she first engaged in protected activity around June or July 2016, when she “raised concerns about, among other things, (i) an agency's unfair treatment of plaintiff, likely due to plaintiff's race and/or sex, and (ii) disparate case assignments for that agency's cases.” Compl. ¶ 20. She does not elaborate upon the nature of the alleged unfair treatment by the unnamed federal agency at that time, nor does she specify how the concerns about either issue were “raised” or to whom. Plaintiff alleges that she again “engaged in protected activity around March 2017, when she prepared and provided an affidavit to an Equal Employment Opportunity (“EEO”) investigator in connection with an agency counsel's complaint that his agency had discriminated against him in terminating his employment.” Compl. ¶ 21.

Plaintiff's Disciplinary Proceedings

On February 7, 2018, plaintiff - who was then serving as defense counsel in Democracy Forward Foundation v. U.S. Department of Health and Human Services, No. 17-2449 - filed a document with the U.S. District Court for the District of Columbia that was labeled a “joint” report and included a signature block bearing the electronic signature of opposing counsel. Compl. ¶ 25; see also Joint Status Report [17-2449 Dkt. # 9].[1] The opposing counsel immediately filed a


response to the status report, announcing that she needed to take “the unusual step of filing this response to clarify the record, ” because “counsel for HHS did not have permission to file the report on Plaintiff's behalf.” Pl.'s Resp. to Joint Proposed Status Report [17-2449 Dkt. # 10].[2]

At 7:09 p.m. this evening, Defendant's counsel sent the undersigned proposed language for inclusion in the joint status report that set forth Defendant's position opposing Plaintiff's request that the parties file interim joint status reports. Defendant's counsel stated that she would file the status report as one on behalf of both parties if Plaintiff's counsel did not respond by 8:00 p.m. Prior to then, Plaintiff's counsel responded indicating that Plaintiff wished for its position to also be reflected in the joint status report - namely that interim status reports were reasonable under the circumstances - and that she did not authorize Defendant's counsel to file any report that omitted Plaintiff's position. Defendant's counsel responded, stating that, unless Plaintiff withdrew its request for interim status reports, she would file the status report omitting Plaintiff's position. Plaintiff's counsel once again objected to filing of the report in that condition, stating its preference to write separately to apprise the Court of its position. Defendant's counsel filed a document at approximately 8:40 p.m. this evening titled “Joint Status Report” that included Plaintiff's counsel's signature block and electronic signature. The document filed by Defendant's counsel did not contain Plaintiff's response to Defendant's opposition to the filing of interim status reports and was filed without Plaintiff's authorization. Accordingly, Plaintiff submits the response below to the final two paragraphs included in the report filed this evening by Defendant's counsel.

Id. at 2-3 (emphasis in original).

Plaintiff Yee filed a correction with the court in her role as counsel for HHS on February 12, 2018. Compl. ¶ 26. The correction stated:

Defendant respectfully submits this notice to correct the record regarding the Joint Proposed Schedule that was filed on February 7, 2018, as ECF No. 9. That filing incorrectly indicated that the filing was a “joint” filing and incorrectly included the signature block for Plaintiff's counsel. The undersigned apologizes for these errors and for any inconvenience.

Def.'s Not. Regarding Joint Proposed Schedule [17-2449 Dkt. # 11].

The Office of Professional Responsibility (“OPR”) opened an investigation into the circumstances surrounding the original filing. Compl. ¶ 27. It issued a draft report of investigation, to which plaintiff had an opportunity to respond, Compl. ¶ 28, and it issued a final report of investigation on September 26, 2019.[3] The Professional Misconduct Review Unit (“PRMU”) conducted its own de novo review of the allegations, and on November 7, 2019, an attorney from the Unit recommended a ten-day suspension for plaintiff's “Lack of Candor” and “Conduct Unbecoming an Assistant United States Attorney.” See Disciplinary Proposal at 1, 6, 7. Plaintiff responded to the proposal, see Pl.'s Resp., and after reviewing the underlying documents, the November 7 recommendation, and plaintiff's response, the Chief of the PRMU, Mark Masling, imposed a five-day suspension without pay in a letter dated January 21, 2020. See Letter from


Mark Masling, Prof'l Misconduct Review Unit Chief, U.S. Dep't of Just., to Marsha Yee (Jan. 21, 2020), Ex. 6/E to Def.'s Mot. [Dkt. # 7-2] (SEALED) (“Disciplinary Decision”) at 1.

The Disciplinary Decision concluded:

Based on my de novo review and evaluation of those materials, as well as my analysis of the relevant legal and ethical standards, I sustain the charge of Lack of Candor, and do not sustain the charge of Conduct Unbecoming an Assistant United States Attorney. I have reduced the proposal to suspend you without pay from your position of Assistant United States Attorney for a period of ten days to a period of five days. I authorize OPR to refer its ROI [Report of Investigation], this letter, and whatever other materials OPR thinks relevant to the New York and California state bars, where you are licensed to practice law, as I conclude that your lack of candor implicates District of Columbia Rule of Professional Conduct 8.4(c).

Disciplinary Decision at 2. Plaintiff filed a grievance objecting to the sanction, and she asserts that the Disciplinary Decision “became final . . . when the Associate Deputy Attorney General, as the grievance official, denied...

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