Runkle v. Gonzales
| Decision Date | 28 September 2005 |
| Docket Number | Civil Action No. 04-0714 (RMU). |
| Citation | 391 F.Supp.2d 210 |
| Parties | George RUNKLE, Plaintiff, v. Alberto GONZALES et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Steven Jeffrey Silverberg, Law Office of Steven J. Silverberg, Washington, DC, for Plaintiff.
John F. Henault, Jr., U.S. Attorney's Office, Washington, DC, for Defendants.
This matter comes before the court on the defendants' motion to dismiss.1 The defendants urge the court to dismiss each of the plaintiff's eight counts in his amended complaint for either a failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) or for lack of subject jurisdiction under Federal Rule of Civil Procedure 12(b)(1). For the reasons discussed in this memorandum opinion, the court grants the defendants' motion to dismiss for failure to state a claim as to Counts I-IV, wherein plaintiff alleges sex and reprisal discrimination in violation of Title VII of the Civil Rights Act of 1964. The court also grants the defendants' motion to dismiss for lack of subject matter jurisdiction as to Count VI, which alleges a violation of the Whistleblower Protection Act; Count VII, which sets forth the plaintiff's allegation of his First Amendment right to free speech violation; and to the portion of Count VIII alleging a violation of the Health Insurance Portability and Accountability Act. The court denies the defendants' motion to dismiss for failure to state a claim as to Count V, in which the plaintiff alleges he endured a hostile work environment in violation of Title VII, and lastly, the court declines to dismiss the portion of Count VIII alleging a violation of the Privacy Act.
The facts of this case are complex, spanning several years and involving many actors. For simplification, the court summarizes the facts in this section and revisits them in more detail when necessary to fully develop its analysis.
The plaintiff, a Supervisory Special Agent with the Federal Bureau of Investigation (" FBI"), began suffering from obsessive-compulsive disorder ("OCD") and depression sometime in April 1997. By March 1999, the plaintiff had successfully dealt with his OCD and depression challenges. Am. Compl. ¶ 27.
On June 12, 2001, the plaintiff filed the first of three administrative charges against his employer. Id. ¶ 29. In this first charge, the plaintiff alleged that he was discriminated against based on his sex in three ways. First, he claimed that the May 29, 2001 letter (the "Findings Letter") from the Adjudication Unit of the FBI's Office of Professional Responsibility ("FBIOPR") setting forth findings that his conduct toward two coworkers violated FBI policies demonstrated that (1) allegations he made concerning a female FBI employee were not referred to FBI-OPR for investigation and (2) allegations he submitted to FBI-OPR were not accepted for investigation.2 Id. ¶ 29a. Second, he alleged that his supervisors promised him a permanent assignment, but that as of July 30, 2001, they had not given him that assignment. Id. ¶ 29b. Third, he alleged that when two female FBI employees, Supervisory Special Agent Terri Royster and Special Agent Rebecca Granger, made allegations against him, those allegations were investigated, while his allegations against those agents were not investigated. Id. ¶¶ 29c, 54c. The FBI determined that the plaintiff had not suffered discrimination and dismissed the charge. The plaintiff appealed this decision to the Equal Employment Opportunity Commission ("EEOC"), which rejected the appeal on March 25, 2004. Id. ¶ 30.
On September 12, 2002, the plaintiff filed his second administrative charge. This time he alleged sex discrimination and discrimination based on reprisal for his having filed the first administrative charge. Id. ¶ 34. He alleged five bases for this charge. First, he reiterated the allegation from his first administrative charge that FBI-OPR investigated Royster and Granger's allegations but ignored his allegations against them. He added, however, that FBI employee Barbara Branham should be investigated for allegedly copying a postcard addressed to him and forwarding that copy to FBI-OPR.3 Id. ¶ 34a. Second, the plaintiff alleged that on September 22, 1999, Assistant FBI Director Jeffrey Higginbotham filed charges against him that were made by a female FBI agent, but that Higginbotham did not file charges that the plaintiff had made against a male agent, even after the plaintiff had discussed those charges with Higginbotham. Id. ¶ 34b. Third, the plaintiff alleged that although he had been required to sign a "no-contact" agreement on September 24, 1999, after a female employee had complained about him, employees whom the plaintiff had complained about where not required to sign similar agreements. Id. ¶ 34c. Fourth, the plaintiff alleged that FBI-OPR opened another investigation against him (the first having resulted in the Findings Letter) based on allegations made by FBI Deputy Assistant Director Thomas Locke in May 2002; Locke, the plaintiff claimed, was motivated by reprisal for being made to provide a sworn statement during the investigation of the plaintiff's first administrative charge.4 Id. ¶ 34d. Fifth, the plaintiff alleged that John Louden, former Acting FBI Assistant Director and Former Section Chief of the FBI's Training Division, had recommended that disciplinary action be taken against the plaintiff on unspecified "prohibited motives." Id. ¶ 34e. The FBI dismissed the plaintiff's second administrative charge, and, again, the EEOC denied the plaintiff's appeal, on March 17, 2004. Id. ¶ 37.
Meanwhile, the plaintiff began raising complaints about a perceived threat to his personal safety on the job. Specifically, in April 2002, he reported to the FBI Director's Office, through the FBI ombudsman,5 that he was concerned for his safety whenever he had to be at the FBI Training Academy in Quantico, Virginia because of "implicit threats" of "physical confrontations with armed agents" working there. Id. ¶ 32. In June 2002, he reported the same safety concerns to the FBI Administrative Services Division, and then again in October 2004 to Grant Ashley, Assistant Director of the FBI's Criminal Investigation Division. Ashley was part of the plaintiff's chain of command. Id. ¶ 38.
Following these disclosures, the plaintiff received a letter dated November 15, 2002 (the "Farrar Letter"), from defendant Sheri Farrar, Former Assistant Director of the FBI. The letter, according to the plaintiff, ordered him to stop pursuing the safety concerns he had been raising or face punishment. Id. ¶ 38a. Defendant Mark Bullock, Former FBI Deputy Assistant Director and Former Assistant Director, delivered the letter to the plaintiff and admonished him to comply with it. Id. ¶ 38b. In late July 2003, defendant Robert Jordan, Former Assistant Director of FBIOPR, suspended the plaintiff for seven days for allegedly violating the provisions of the Farrar Letter. Id. ¶ 38c. FBI Assistant Director, Steve McCraw, denied the plaintiff's appeal of his suspension and told the plaintiff to comply with the letter. Id. ¶ 38d. The plaintiff then reported to the Department of Justice's Inspector General's office, on four separate occasions, that defendants Jordan, Farrar, and McCraw violated the Whistleblower Protection Act and the plaintiff's First Amendment rights by threatening and imposing disciplinary action because he raised safety concerns. Id. ¶ 45.
On July 3, 2003, the plaintiff filed his third administrative charge, which again alleged sex discrimination and retaliation. Id. ¶ 39. This charge had three bases. First, the plaintiff alleged that on April 15, 2003, he was charged with insubordination based on an email message he had sent to Sharon Singleton, a nurse in the FBI's Health Care Programs Unit, causing the FBI-OPR again to open an investigation. Id. ¶ 39b. The investigation included an allegedly unrelated January 15, 2003 electronic communication ("EC") that the plaintiff had sent the defendant Jordan, via the Ombudsman, claiming misconduct by a Training Division supervisory special agent. Id. Second, the plaintiff alleged that while his personal safety concerns went ignored, Singleton's allegations against him were investigated. Id. ¶ 39a. Third, he claimed that on February 26, 2004, he was removed from his instructor assignment at the FBI Training Academy and removed from the Quantico facility altogether.6 Id. ¶ 39c. The FBI dismissed this administrative charge as well, but the plaintiff did not appeal the decision to the EEOC. Id. ¶ 12.
While all this was going on, a number of the plaintiff's colleagues made reference to his medical history or made allegedly false statements about him. On November 19, 2002, the defendant Bullock informed Keith Slotter, the plaintiff's Section Chief at the time, about the plaintiff's past medical diagnoses. Id. ¶ 40. In April or May of 2003, Singleton provided FBIOPR investigators with false information about the plaintiff's psychological condition, depicting him as a "stalker." Id. ¶ 42. In May or June of 2002, Louden wrote a letter containing "false and defamatory statements" about the plaintiff. Id. ¶ 43. In a December 8, 2003 sworn statement given as part of the plaintiff's third administrative charge, defendant Bullock stated that he had reviewed communications concerning the plaintiff's fitness-for-duty exam and that medical professionals had diagnosed him with "obsessive compulsive personality disorder." Id. ¶ 46. In a January 14, 2004, sworn statement, William Coggins, Section Chief of the Personnel Assistance Section of the FBI's Administrative Services Division, stated that (1) he...
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