Sagar v. Lew

• Decision Date: 30 September 2016
• Docket Number: Civil Action No. 14-1058 (RDM)
• Citation: 211 F.Supp.3d 262
• Court: U.S. District Court — District of Columbia
• Parties: Vidya SAGAR, Plaintiff, v. Jacob LEW, Secretary of the Treasury Defendant.

211 F.Supp.3d 262

Vidya SAGAR, Plaintiff,

v.Jacob LEW, Secretary of the Treasury Defendant.

Civil Action No. 14-1058 (RDM)

United States District Court, District of Columbia.

Signed September 30, 2016

Vidya Sagar, Hyattsville, MD, pro se.

Claire M. Whitaker, U.S. Attorney's Office, Rafique O. Anderson, United States Capitol Police, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiff Vidya Sagar, proceeding pro se , was terminated from his position at the Department of Treasury during his one-year period of probationary employment. He now sues that Department for violations of the Age Discrimination in Employment Act ("ADEA"); violations of the federal Whistleblower Protection Act ("WPA"); and violations of ethical rules and agency regulations, which he asks this Court to enforce under the general judicial review provisions of the Administrative Procedure Act ("APA"). On the Department's motion, the Court will dismiss Sagar's WPA claim and the APA claims for lack of subject matter jurisdiction, leaving only Sagar's claims under the ADEA. Sagar's cross-motion for partial summary judgment on the APA claims, accordingly, will be denied.

I. BACKGROUND

For purposes of the Department's motion to dismiss, the following allegations in Sagar's complaint are taken as true.¹ See, e.g. , Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

On December 20, 2010, Sagar began a one-year probationary term as an "IT Specialist" at the Department of the Treasury.

Compl. ¶ 7; see Dkt. 41 at 25 (Compl. Ex. 2). He was sixty-three years old at the time. See Compl. ¶ 54. This position carried a Grade 15 on the federal government's General Schedule ("GS-15") and came with a salary in excess of $123,000. Id. ¶ 7. Sagar holds a Ph.D. and brought a wealth of experience to his new job, including "extensive experience in information technology" with the consulting divisions of PeopleSoft and Oracle. Id. ¶¶ 4–5. In these positions, he consulted with more than a dozen prominent corporations, including CitiGroup, MetLife, and JPMorgan Chase. Id. ¶ 5.

After joining Treasury, Sagar worked on the Premium Assistance Tax Credit project ("PTC"), a part of the wider effort to implement the Patient Protection and Affordable Care Act. Id. ¶ 8. Sagar had a number of managers in this role but did not manage anyone himself. Id. ¶¶ 9–10. He alleges that he "took initiative" in creating a "strategic team at PTC." Id. ¶ 16. He also alleges that during his time on the PTC project, he worked on several significant assignments, helped develop new members to the team, saved the project money with his ideas, and received positive feedback from managers. Id. ¶¶ 17–33.

Sagar was particularly dissatisfied with at least two of his managers—Matthew Brady and Peter Gianokos. Id. ¶¶ 10, 12, 36–42. He alleges that both men were "age conscious" and "made comments about Sagar's age on multiple occasions." Id. ¶ 43. These comments included questions about how long Sagar had been employed, questions about his exact age, comments about how old he looked, and discussions about retirement (although Sagar seems to allege that only some of these comments or questions came directly from Brady and Gianokos and others came from fellow employees acting as their "surrogates"). Id. ¶¶ 43–47. Sagar also alleges that his managers "[w]asted time [with] futile activities," such as spending eight-to-ten weeks training new employees. Id. ¶ 73.

Sagar received a poor annual review from Brady in September 2011, and he met with Gianokos to discuss the review the following week. Id. ¶ 62. Gianokos said he would not overrule Brady. Id. Sagar asked if a higher level official could review the decision, but Brady and Gianokos declined. Id. ¶ 63. On October 27, 2011, Brady and Gianokos told Sagar that they were firing him for "performance and behavior issues" and gave him an unsigned letter explaining the decision. Id. ¶ 67; see Dkt. 41 at 23 (Compl. Ex. 1). On November 2, 2011, Gianokos gave Sagar a copy of a more-detailed termination letter, which was also dated October 27, 2011. Compl. ¶ 70. That letter described five instances in which Sagar had "failed to meet the expectations of [his] position and/or displayed unprofessional behavior." Dkt. 41 at 25 (Compl. Ex. 2). It further explained that Sagar had been "counseled regarding the[se] deficiencies" but that "there ha[d] been no improvement." Compl. ¶ 70. Sagar alleges that Brady was planning to fire him even before he joined the PTC team and that he violated Department ethical rules and principles in the process. Id. ¶¶ 56–58. Sagar was later replaced by a younger employee who was then forty-seven years old, and whom Sagar says was not qualified for a GS-15 position. Id. ¶ 52.

Sagar challenged his termination with Treasury's Equal Employment Opportunity office. Id. ¶ 82. He alleges that, at some point during this process, the Department admitted that Sagar had stated a "prima facie case of age discrimination" because a younger GS-15 in his office was not fired and because Sagar had been replaced by a younger employee. Id. ¶ 85. Sagar alleges that he properly exhausted his age discrimination claim before filing suit. Id. ¶ 88.

Sagar then filed suit in this Court. The complaint includes a purportedly non-exhaustive list of "bas[e]s" for the lawsuit. See Compl. ¶ 90. Based on that list, the entirety of the complaint, and Sagar's descriptions of the complaint in his opposition brief, Dkt. 56 at 1, the Court construes Sagar's claims as follows:

Count One alleges "[a]ge discrimination" in violation of the ADEA, 29 U.S.C. § 621, et seq . Counts Two and Three allege that Treasury violated ethical rules and regulations related to Sagar's termination, which Sagar seeks to challenge under the Administrative Procedure Act, 5 U.S.C. § 701 et seq . Count Four alleges "[r]etaliation/reprisal," which the Court construes as an ADEA retaliation claim under 29 U.S.C. § 623(d). Count Five alleges "[w]histleblowing" in violation of the federal Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). Finally, Count Six alleges "[h]arassment." The Court will construe this as an ADEA hostile work environment claim. See Dediol v. Best Chevrolet, Inc. , 655 F.3d 435, 440–41 (5th Cir.2011) ; Ware v. Hyatt Corp. , 80 F.Supp.3d 218, 226–27 & n.5 (D.D.C. 2015).

Now pending before the Court are the Department's motion to dismiss, Dkt. 55, and Sagar's cross-motion for partial summary judgment as to Counts Two and Three, Dkt. 64.

II. STANDARD OF REVIEW

Two legal standards govern the Court's consideration of the pending motions.

First, the Department has moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, although the 12(b)(6) portion has been withdrawn. See Dkt. 58 at 2. A motion to dismiss under Rule 12(b)(1) challenges the Court's jurisdiction to hear the claim, and may raise a "facial" or "factual" challenge to the Court's jurisdiction. A facial challenge asks whether the plaintiff has pleaded facts sufficient to establish the court's jurisdiction, while a factual challenge asks the court to "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992). In other words, a facial challenge is confined to the four corners of the complaint, while a factual challenge permits the court to look beyond the complaint to satisfy itself that it has jurisdiction to hear the suit. Whether the motion to dismiss is facial or factual, the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject-matter jurisdiction. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

In addition, Sagar has cross-moved for partial summary judgment. Summary judgment is appropriately granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell , 433 F.3d 889, 895–96 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the outcome of the litigation. Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb , 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb , 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record ...." Fed. R. Civ. P. 56(c)(1)(A).

The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc. v. Stanley , 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby , 477 U.S. at 255, 106 S.Ct. 2505 ; see also Mastro v. Pepco , 447 F.3d 843, 850 (D.C. Cir. 2006). The non-movant's opposition, however, must consist of more than allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e) ; Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-movant must provide evidence that would permit a reasonable jury to find in its favor. See Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). If...