Menoken v. McGettigan

• Decision Date: 11 August 2017
• Docket Number: Civil Action No. 16–0084 (ABJ),Civil Action No. 16–0083 (ABJ)
• Citation: 273 F.Supp.3d 188
• Parties: Cassandra M. MENOKEN, Plaintiff, v. Kathleen MCGETTIGAN Acting Director, United States Office of Personnel Management, et al., Defendants.
• Court: U.S. District Court — District of Columbia

273 F.Supp.3d 188

Cassandra M. MENOKEN, Plaintiff,

v.Kathleen MCGETTIGAN Acting Director, United States Office of Personnel Management, et al., Defendants.¹

Civil Action No. 16–0083 (ABJ)

Civil Action No. 16–0084 (ABJ)

United States District Court, District of Columbia.

Signed August 11, 2017

Cassandra Michelle Menoken, Washington, DC, for Plaintiff.

Johnny Hillary Walker, III, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

On January 15, 2016, plaintiff Cassandra M. Menoken, who has filed a case against the United States Office of Personnel Management ("OPM") in this court previously, Am. Compl. [No. 1:03–cv–01775, Dkt. # 8] (referred to in this opinion as " Menoken I Compl."), filed two more lawsuits proceeding pro se : one against OPM and the Social Security Administration ("SSA"), and the other against OPM and the United States Department of Health and Human Services ("HHS"). In one case, plaintiff alleges that OPM and SSA violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), by retaliating against her because she engaged in protected activity. Am. Compl. [No. 1:16–cv–0084, Dkt. # 9] ("Menoken II Compl.") ¶ 1. In the second case, she alleges that OPM and HHS violated Title VII by discriminating against her based on her race, and retaliating against her because she engaged in protected activity. Am. Compl. [No. 1:16–cv–0083, Dkt. # 8] ("Menoken III Compl.") ¶ 1. Plaintiff's claims all arise out of her attempt to become an Administrative Law Judge ("ALJ").

On October 11, 2016, defendants filed a consolidated motion to dismiss plaintiff's complaints under Federal Rule of Civil Procedure 12(b)(6), arguing that: (1) plaintiff's claims in Menoken II are barred under the doctrines of res judicata and issue preclusion, and (2) plaintiff has failed to allege sufficient facts in Menoken III to state claims of discrimination and retaliation. Defs.' Mot. to Dismiss [No. 1:16–cv–0084, Dkt. # 11] ("Defs.' Mot."); Mem. of P. & A. in Supp. of Defs.' Mot. [No. 1:16–cv–0084, Dkt. # 11–1] ("Defs.' Mem."); Defs.' Mot. [No. 1:16–cv–0083, Dkt. # 10]; Defs.' Mem. [No. 1:16–cv–0083, Dkt. # 10–1]. On October 31, 2016, plaintiff opposed defendants' motion, Pl.'s Consolidated Mem. in Opp. to Defs.' Mot. [No. 1:16–cv–0084, Dkt. # 14] ("Pl.'s Opp."); Pl.'s Opp. [No. 1:16–cv–0083, Dkt.# 13], and defendants have replied. Defs.' Reply in Supp. of Defs.' Mot. [No. 1:16–cv–0084, Dkt. # 15] ("Defs.' Reply"); Defs.' Reply [No. 1:16–cv–0083, Dkt. # 14].

After considering the parties' submissions, the Court will grant defendants' motion to dismiss plaintiff's retaliation claim against OPM and SSA in Menoken II because it is precluded under the doctrines of res judicata and issue preclusion. The Court will also grant defendant's motion to dismiss plaintiff's retaliation claim against HHS, but it will deny the motion to dismiss plaintiff's claim of retaliation against OPM and plaintiff's claim of discrimination against OPM and HHS in Menoken III.

BACKGROUND

I. Factual Background

Plaintiff is an African American female living in Washington, D.C., who has been applying for an ALJ position since 1993. Menoken III Compl. ¶ 4. The ALJ application process includes a competitive examination administered by OPM, the results of which are then used by agencies seeking to hire ALJs. See id. ¶¶ 16, 31.

OPM has exclusive control over the process used to refer applicants to be considered for ALJ positions. Menoken III Compl. ¶ 5. OPM maintains an "ALJ Register" that ranks applicants in descending order based on their examination scores. Id. ¶ 16. Upon request, OPM provides "certificates of eligibles" to agencies looking to hire ALJs. Id. ¶ 31. These certificates contain names of applicants based on their ALJ examination score ranking and their geographic availability, and they usually list at least three applicants for each vacancy an agency is seeking to fill. Id. ¶¶ 32–33.

In 1993, plaintiff took the ALJ examination administered by OPM. Menoken II Compl. ¶ 4. OPM then created an ALJ Register using the scores of applicants who had completed the 1993 ALJ examination, and that ALJ Register was used for the next fourteen years until it was replaced in 2007 based on the results of a new examination. Id. ¶¶ 16, 22.

In March 2001, OPM issued a certificate to SSA containing the names of eligible candidates for ALJ positions that SSA was seeking to fill. Menoken II Compl. ¶ 36. The certificate was based on the 1993 rankings. Id. ¶ 22. SSA then used this certificate to make ALJ selections in April 2001, and communicated offers to selectees in September 2001. Id. ¶ 54. Plaintiff's name was not on the certificate for consideration. See id. ¶ 39.

In 2005, OPM compiled four certificates of eligibles for HHS, which was seeking to hire a total of fifty ALJs for assignment to four locations. Menoken III Compl. ¶ 38. Instead of issuing one certificate with potential ALJ candidates, which plaintiff describes as the typical method, OPM gave HHS "four small ALJ certificates"—one for each geographic location. Id. ¶¶ 44, 46. Each certificate listed candidates in order of their ALJ examination scores and their geographic availability. Id. ¶ 32. Even though plaintiff had indicated that she was available for all four of the geographic locations involved, her name was not on any of the certificates. See id. ¶¶ 38, 49. Plaintiff claims that had the "normal practice" been used, her name would have been included on the single large certificate for ALJ consideration because that list would have included at least 150 ALJ candidates. Id. ¶ 45.²

II. Related Cases

Plaintiff has sued OPM before. She filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in 1994, and then brought an action in the U.S. District Court for the District of Columbia in 2003. Both proceedings have been resolved.

A. Menoken v. OPM , EEOC No. 100–95–7644X ("EEOC Action")

After plaintiff took the ALJ examination in 1993, she filed a formal charge with the EEOC against OPM in May of 1994. See Ex. 1 to Defs.' Mot. [No. 1:16–cv–0084, Dkt. # 11–2] ("EEOC Order") at 1; see also Menoken v. Whipple , 605 F.Supp.2d 148, 150 (D.D.C. 2009) (describing the procedural history of plaintiff's case). Plaintiff alleged that the ALJ examination and selection process violated Title VII by discriminating against African American and female applicants through its design and implementation. EEOC Order at 3. Specifically, plaintiff claimed that several of the examination components,³ including many of the Supplemental Qualification Statement ("SQS") benchmarks used to award points to exam takers, had a disparate impact on African American and female applicants. Id. at 1–2, 49.

On November 9, 2000, the Administrative Judge presiding over the case found that the "partner benchmark" used in the SQS portion of the ALJ examination violated Title VII. EEOC Order at 53. This component, which awarded points to applicants who were partners at large law firms, was found to create an "adverse impact on the basis of race." Id. at 50. The remainder of plaintiff's discrimination claims were rejected by the Administrative Judge. Id. at 61. The Administrative Judge ordered OPM to "cease use of that benchmark" and to stop relying on it during the ALJ hiring process. Id. OPM was required to review the scores of all applicants on the 1993 ALJ Register, adjust their scores and rankings if they had been affected, and notify agencies using the 1993 ALJ Register of the discriminatory benchmark and the EEOC Order. Menoken III Compl. ¶¶ 17–19, 21.

In August and September 2001, plaintiff filed two appeals with the EEOC, alleging that OPM had failed to comply with the EEOC's Order and that the Administrative Judge had erroneously rejected her other claims. See Defs.' Mem. at 4; Whipple , 605 F.Supp.2d at 151. The EEOC rejected the appeals in May 2003. Defs.' Mem. at 4; Whipple , 605 F.Supp.2d at 151. Plaintiff then sought reconsideration of the EEOC's May 2003 decision, but because she filed a civil action in the U.S. District Court for the District of Columbia also alleging that OPM had not properly implemented the EEOC's Order, the EEOC dismissed the request for reconsideration. Defs.' Mem. at 5.

B. Menoken v. Whipple , 605 F.Supp.2d 148 (D.D.C. 2009) (" Menoken I ")

In August 2003, plaintiff brought an action in the U.S. District Court for the District of Columbia, alleging that OPM was in "willful violation" of the EEOC Order and that OPM's administration of the ALJ selection process unlawfully discriminated against African American and female applicants in violation of Title VII under the theories of disparate impact and disparate treatment. Menoken I Compl. ¶¶ 1–3; Whipple , 605 F.Supp.2d at 151–52. In March 2009, the court granted summary judgment for OPM on all counts. Whipple , 605 F.Supp.2d at 156. The court held that OPM was in compliance with the EEOC Order to eliminate the partner benchmark component from the ALJ examination, and that there was insufficient evidence of discrimination to support the disparate impact and disparate treatment claims to survive summary judgment. Id. at 152.

C. Menoken v. Cobert, et al, No. 1:16–cv–00084 (D.D.C. 2016) ("Menoken II ")

On January 15, 2016, plaintiff filed two complaints with this Court, and she filed an amended complaint in each case on August 23, 2016. Menoken II Compl.; Menoken III Compl. The first, Menoken v. Cobert, et al. , No. 1:16–cv–0084, asserts Title VII retaliation claims against OPM and SSA. Menoken II Compl. ¶ 1. Plaintiff alleges that in March 2001, OPM and SSA manipulated the ALJ selection process to deny plaintiff consideration for an ALJ position because she was a party in the 1994 EEOC Action. See id. ¶¶ 40–41, 55; see also id. at 11. Specifically, plaintiff claims that "OPM was determined to do whatever necessary to ensure that [p]laintiff would not benefit from her success"...