Quynh Vu Bain v. Office of Attorney Gen., Civil Action 21-1751 (RDM)

CourtUnited States District Courts. United States District Court (Columbia)
PartiesQUYNH VU BAIN, Plaintiff, v. OFFICE OF THE ATTORNEY GENERAL, et al., Defendants.
Docket NumberCivil Action 21-1751 (RDM)
Decision Date23 December 2022

QUYNH VU BAIN, Plaintiff,


Civil Action No. 21-1751 (RDM)

United States District Court, District of Columbia

December 23, 2022


Randolph D. Moss United States District Judge

Plaintiff Quynh Vu Bain, proceeding pro se, is an Asian-American woman of Vietnamese descent and former Immigration Judge who was removed from her position on September 17, 2020. Dkt. 16 at 2 (Am. Compl. ¶ 2). She now brings this lawsuit against various components of the Department of Justice (“DOJ” or “Defendants”).[1] Id. at 2-3 (Am. Compl. ¶ 4). She asserts a litany of claims, alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. and the Privacy Act of 1974, 5 U.S.C. § 552a, as well as race, sex, age, national origin, and disability discrimination, retaliation, and hostile work environment claims in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), the


Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302(b) (“WPA”). Id. Defendants move to dismiss Bain's complaint in part pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 20. They contend that Bain failed to administratively exhaust certain of her Privacy Act and discrimination and retaliation claims and that she failed adequately to plead certain of her other discrimination and retaliation claims as well as her hostile work environment claim. Dkt. 20-1 at 1-2. Defendants do not move to dismiss Bain's FOIA claims, her Privacy Act claims related to denial of access to or improper release of records, her claim under the WPA, or certain of her discrimination and retaliation claims, most notably those pertaining to her removal. Id.

For the reasons that follow, the Court will GRANT Defendants' motion to dismiss in part and DENY it in part.


For purposes of evaluating Defendants' motion, the following allegations, which are taken from Bain's complaint, are accepted as true. See Am. Nat'lIns. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). In addition, because Bain is proceeding pro se, the Court will hold her pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). To this end, the Court will consider all of her exhibits-and not merely her complaint-in evaluating the pending motion to dismiss. See Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007). There are limits to this forbearance, however, and even when a plaintiff is proceeding pro se, a district court is not “obliged to sift through hundreds of pages . . . to make [its] own analysis and determination of what may[] or may not” support the plaintiff's claims. Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988). This is such a case, particularly so given the fact that Bain, although proceeding pro se, is a lawyer. She


has also filed thousands of pages of attachments spread across thirty separate exhibits. Dkt. 53. The amended complaint often refers generally to an exhibit-e.g. “Exhibit 3”- without including any citation to a specific page, even when the exhibit is hundreds of pages long. See, e.g., Dkt. 16 at 6 (Am. Compl. ¶ 17); id. at 16 (Am. Compl. ¶ 58). As a result, where the Court can reasonably identify the relevant facts and the nature of Bain's claims from her complaint and a reasonable review of the attachments thereto, the Court will address those facts and claims. “But, where it can only speculate as to what [Bain] intends to allege, the Court will not, in effect, assume the role of the advocate and fill in the gaps left in [Bain]'s complaint,” nor will it scour the record so that it can make Bain's case for her. Husain v. Smith, No. 15-cv-708, 2016 WL 4435177, at *1 (D.D.C. Aug. 19, 2016) (internal quotation marks omitted).

A. Factual Background

Bain was a career Justice Department employee, serving for nearly thirty years. Dkt. 16 at 2 (Am. Compl. ¶ 2). From 2008 until her removal in September 2020, she was an Immigration Judge in the Executive Office for Immigration Review (“EOIR”). Id.

Bain's troubles began in 2014, when she started to experience severe migraines while conducting hearings by videoconference. Id. at 10 (Am. Compl. ¶ 36). To alleviate this condition, she requested a permanent reassignment to the non-videoconference docket in the Arlington, Virginia immigration court. Id. That request was denied, prompting Bain to file a formal complaint with EOIR's Equal Employment Opportunity (“EEO”) office in May 2014. Id. (Am. Compl. ¶ 37); Dkt. 53-4 at 6 (Pl.'s Ex. 3).[2] Although Bain eventually withdrew her May


2015 2014 complaint, she contends that her EEO activity precipitated a series of “discriminatory and retaliatory personnel actions” that culminated in her removal. Dkt. 16 at 10 (Am. Compl. ¶ 38). The first such action came in January 2015, when then-Chief Immigration Judge Mary Beth Keller admonished Bain for “communicating by email in a ‘rude' and ‘disrespectful' manner,” after Bain had complained about faulty videoconference equipment. Id. (Am. Compl. ¶ 39).

Things escalated in February 2015, when Bain was assigned to a detail with the York, Pennsylvania immigration court. Id. at 11 (Am. Compl. ¶ 40). She alleges that she experienced numerous instances of improper treatment from her supervisor, Assistant Chief Immigration Judge (“ACIJ”) Christopher Santoro, while on detail. See id. at 11-15 (Am. Compl. ¶ 40-55). According to Bain, ACIJ Santoro assigned her “over 100 aged, detained” cases “from the dockets of white male immigration judges” that Bain believed carried “heightened litigation risks . . . to the Agency, as well as [to] her own professional and personal (Bivens) liability.” Id. at 11 (Am. Compl. ¶¶ 40-41). ACIJ Santoro also allowed older white male judges to foist their unwanted cases onto Bain's docket, and, when Bain concluded her work on these cases, he returned them to the original judges who took credit for Bain's efforts. Id. at 11-12 (Am. Compl. ¶¶ 42-43). When Bain raised concerns about her work assignments, ACIJ Santoro “dismissed” those concerns. Id. at 11 (Am. Compl. ¶ 41). Not only that, he “thwarted” her


efforts to adjudicate these cases, forbidding her from conducting bond hearings and denying her requests for additional time to prepare for hearings and to draft decisions. Id. (Am. Compl. ¶ 42).

A month after Bain's York detail began, ACIJ Santoro issued her a written reprimand for behaving “intemperate[ly]” toward him. Id. at 12 (Am. Compl. ¶ 44). Bain contends that this reprimand was the product of discrimination based on the temporary disability she was experiencing due to her migraines, as well as retaliation for protected whistleblowing activity- that is, concerns Bain had expressed to ACIJ Santoro regarding the “100 aged” cases that she was assigned to adjudicate, while denied authority to conduct bond hearings. Id. at 13-14 (Am. Compl. ¶¶ 46, 48). The reprimand was particularly galling, in Bain's view, because ACIJ Santoro and Chief Judge Kelly treated other (white male) judges more leniently, despite those judges' at times “egregious, highly inappropriate conduct.” Id. at 13 (Am. Compl. ¶ 47). This reprimand was no mere slap on the wrist, according to Bain, because it rendered her ineligible for the accommodation she had previously (although unsuccessfully) sought: reassignment to the Arlington immigration court. Id. at 14 (Am. Compl. ¶ 49). As a result, she was forced to continue working via videoconference, which exacerbated her migraines. Id. She filed an informal EEO complaint in March 2015, several days after receiving the reprimand, but eventually withdrew that complaint. Dkt. 53-4 at 8 (Pl.'s Ex. 3).

Presumably to alleviate her migraines, Bain began to travel to York to conduct hearings in person. Dkt. 16 at 14 (Am. Compl. ¶ 50). In her view, she had received all necessary approvals for this travel. Id. at 14-15 (Am. Comp. ¶ 52). But ACIJ Santoro disagreed, issuing her a “counseling letter” in June 2015 that accused her of traveling without appropriate authorization. Id. at 14 (Am. Compl. ¶ 51). He also revoked the authorizations she had received


from other agency personnel and denied her request for reimbursement of her travel expenses. Id. Bain maintains that the counseling letter, like the March 2015 reprimand, “was a pretext for discrimination and retaliation.” Id. (Am. Compl. ¶ 52).

ACIJ Santoro provided Bain a performance review in August 2015. Id. at 15 (Am. Compl. ¶ 53). The review credited her with “satisfactory work performance” but also stated that her professionalism “need[ed] improvement.” Id. As support for this feedback, the performance rating referenced both the March 2015 reprimand and the June 2015 counseling letter. Id.

Later that year, Bain made a second request for reassignment to the Arlington immigration court, but her request was again denied. Id. at 15, 41 (Am. Compl. ¶¶ 54, 150). Around this same time, in November 2015, DOJ also rejected an application Bain had submitted for a position on the Board of Immigration Appeals (“BIA”). Id. at 44 (Am. Compl. ¶ 161). Bain then filed an informal EEO complaint on October 9, 2015, and eventually a formal complaint on December 10, alleging, among other things, that the March 2015 reprimand, June 2015 counseling letter, August 2015 performance rating, denial of her second reasonable accommodation request to be reassigned to Arlington, and rejection of her BIA application violated Title VII and the Rehabilitation Act. Dkt. 53-4 at 3, 10 (Pl.'s Ex. 3); Dkt. 16 at 15 (Am. Compl. ¶ 54).

Shortly after Bain filed her December 2015 complaint, she was reassigned to the Arlington immigration court's...

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