Steele v. Blinken

• Decision Date: 19 October 2022
• Docket Number: Civil Action 1:22-cv-00035 (RDA/JFA)
• Parties: TERRY STEELE, Plaintiff, v. ANTONY BLINKEN, Secretary of U.S. Department of State, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

TERRY STEELE, Plaintiff,
v.
ANTONY BLINKEN, Secretary of U.S. Department of State, Defendant.

Civil Action No. 1:22-cv-00035 (RDA/JFA)

United States District Court, E.D. Virginia, Alexandria Division

October 19, 2022

MEMORANDUM OPINION AND ORDER

Rossie D. Alston, Jr. United States District Judge

This matter comes before the Court following Plaintiff Terry Steele's (“Plaintiff”) filing of two complaints in related cases which have since been consolidated by this Court's Order. Dkt. 12. Defendant Antony J. Blinken, in his official capacity as Secretary of the U.S. Department of State, (“Defendant”) has now filed a Motion to Dismiss both complaints. Dkt. 14. Plaintiff has also filed a Motion for Reconsideration of this Court's Order consolidating the two complaints. Dkt. 21. The Court has dispensed with oral argument as it would not aid in the decisional process. Fed.R.Civ.P. 78(b); Loc. Civ. R. 7(J). This matter has been fully briefed and is now ripe for disposition. Considering Defendant's Memorandum in Support of its Motion to Dismiss (Dkt. 15), Plaintiff's Opposition (Dkt. 17), and Defendant's Reply (Dkt. 22), as well as Plaintiff's Motion for Reconsideration (Dkt. 21), Defendant's Opposition (Dkt. 26), and Defendant's Response to this Court's Show Cause Order (Dkt. 30), the Court GRANTS the Motion to Dismiss (Dkt. 14) and DENIES the Motion for Reconsideration (Dkt. 21) for the reasons that follow.

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I. BACKGROUND

A. Factual Background^[1]

On January 13, 2022, Plaintiff-represented by counsel-filed a Complaint (“-35 Complaint”) alleging two counts against Defendant: (1) employment discrimination on the basis of age and (2) a hostile work environment due to discrimination based on sex and acts of reprisal. One week later, on January 20, 2022, Plaintiff-appearing in a pro se capacity-filed a separate Complaint (“-65 Complaint”) in a new case alleging two counts against Defendant: (1) hostile discrimination and reprisal and (2) violations of the Privacy Act of 1974, 5 U.S.C. § 552(a), (“Privacy Act”) and material fraud. See Steele v. Blinken, No. 1:22-cv-65-RDA-JFA (“Steele II”), Dkt. 1.

Plaintiff is a 71-year-old male who worked as a GS-14 Mechanical Engineer in the Commissioning Branch (“COM”) of the Bureau of Overseas Buildings Operations (“OBO”) at the U.S. Department of State (“DOS” or “State”) in Rosslyn, Virginia. Dkt. 1 ¶¶ 3-5. During his tenure at the DOS, he was allegedly the oldest and most experienced civil servant at the agency and considered a subject matter expert in multiple fields. Id. ¶ 6. In 2017, Plaintiff filed a formal complaint against the DOS in 2017 alleging that throughout 2016 and 2017 he experienced a hostile work environment. Id. ¶ 7. Thereafter he received less than “Outstanding” performance evaluation ratings from his supervisors following the exercise of his protected activity. Plaintiff claims that at least four management officials at State were aware of his report against the agency. Id. ¶ 7. For example, on August 2, 2017, Plaintiff received a less than “Outstanding” rating for his 2016 annual performance evaluation. Id. ¶ 8. Then, on September 7, 2017, Plaintiff alleges a

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death threat was made outside of his cubicle-although it is unclear who issued this threat or to whom it was directed. Id. ¶ 9. Again, on March 6, 2018, Plaintiff received a less than “Outstanding” rating for his 2017 annual performance evaluation. Id. ¶ 10.

Following Plaintiff's protected disclosure to an OBO bureau designee in 2017, on and prior to August 6, 2018, Plaintiff further alleges that his office colleagues privately discussed his confidential personal information-including financial and tax records, relationships, and personal travel-contained within Federal Bureau of Investigation (“FBI”) reports and other investigative records. Id. ¶¶ 11, 13. He also alleges that colleagues at State disclosed this information outside of the agency. Id. ¶ 11. Plaintiff avers that he “was stalked by numerous individuals” affiliated with the agency from 2016 through 2018. Id. ¶ 12. And on numerous occasions, Plaintiff's colleagues made derogatory remarks with respect to his age including, but not limited to: “That old goat”; “Old and tired”; “Won't leave”; “Terry is old and burned out”; “He has bags under his eyes”; and “His expiration date is up.” Id. ¶ 14. In other instances, one of Plaintiff's managers, Mr. Ardeshir Kanga, asked Plaintiff about his plans for retirement while another, Ms. Lisa Kyriienko, called him “abnormal.” Plaintiff also claims his colleagues made comments or took actions of a sexual nature directed towards Plaintiff including, but not limited to: “Caught him horizontal”; “Six girlfriends”; leaving “Sex magazines” in his hotel room; and sending sexual images to him via U.S. mail and email “from the DOS.” Id. ¶ 17.

Plaintiff adds in his -65 Complaint that certain of his private information was disclosed in an effort of intimidation, including: where his uncle attended college; the nickname of his brother, which Plaintiff believes implies “the agency or it's [sic] sister agencies killed [his] brother in the first degree”; sending a cryptic email which Plaintiff understands to suggest that the Inspector General of DOD “will be killed by Diplomatic Security”; and a February 2018 message from his

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supervisor Ms. Kyriienko that “he's surrounded,” which Plaintiff understands to imply he is under electronic surveillance by multiple agencies. Steele II, Dkt. 1 ¶ 29. Lastly, Plaintiff avers that in addition to obstructing justice and “suborning the Constitution,” Defendant “has withheld exculpatory information and used and uses nanotechnology for hidden surveillance and uses nanotechnology for en vivo stalking and en vivo harassment . . . by means of a nano-transceiver.” Id. ¶ 31.

Plaintiff seeks compensatory damages and punitive damages as well as a permanent injunction against Defendant against future acts of discrimination while seeking the engagement of a special prosecutor for referrals of illegal activities.

B. Procedural Background

On March 4, 2020, the Equal Employment Opportunity Commission (“EEOC”) denied Plaintiff's hostile work environment complaint. Dkt. 1 ¶¶ 3-6. Following Plaintiff's appeal of that decision, on October 20, 2021, the EEOC issued a Right to Sue. Plaintiff then filed the -35 Complaint through counsel on January 13, 2022 and filed the -65 Complaint in a pro se capacity on January 20, 2022, alleging the same base factual allegations as in the -35 Complaint. On March 10, 2022, Judge Brinkema consolidated the -65 Complaint into this matter. Dkt. 10. The Magistrate Judge then directed Defendant to file a response to both the -35 and -65 complaints by April 4, 2022. Dkt. 12. On April 4, 2022, Defendant filed its Motion to Dismiss for Failure to State a Claim with Roseboro notice as well as a supporting memorandum. Dkt. Nos. 14-15. Plaintiff, through counsel, filed an opposition brief related to the counts alleged in the -35 Complaint on April 25, 2022.^[2] On April 26, 2022, Plaintiff, in his pro se capacity, filed a response

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brief related to the counts alleged in the -65 Complaint. Dkt. 19. This Court then ordered that Plaintiff be prohibited in the context of this matter from filing in a pro se capacity and that Plaintiff's response brief would be withdrawn from the record. Dkt. 20. On April 27, 2022, Plaintiff's counsel then filed a motion for reconsideration of that order claiming an inability to represent him on the counts alleged in the -65 Complaint. Dkt. 21. Defendant filed a reply brief on April 29, 2022. Dkt. 22.

On May 2, 2022, this Court ordered Plaintiff to show cause as to why Plaintiff had noted on his Rule 83.1 certification that he received assistance from counsel with respect to the -65 Complaint and further stayed its prior Order prohibiting Plaintiff from filing in a pro se capacity. Dkt. 23. On May 13, 2022, Plaintiff filed a response suggesting he received legal assistance in drafting his Privacy Act claim and further included his response to the arguments raised by Defendant as to such claim. Dkt. 26. This Court further ordered Plaintiff to identify the “McLean attorney” he referenced in his prior filing. Dkt. 27. On May 25, 2022, Plaintiff asserted that the “McLean attorney declines assistance of any type in district court” and that the “McLean counsel is not a ghostwriter” but rather was solely involved in the EEOC filing. Dkt. 28 at 3-4. On May 31, 2022, this Court directed Defendant to show cause as to why the case should not be severed to allow the -35 and -65 Complaints to proceed independently given Plaintiff's unique split status as both represented and pro se across different counts but the same core nucleus of operative facts. Dkt. 29. Defendant filed a response on June 7, 2022. Dkt. 30.

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II. STANDARD OF REVIEW

A Rule 12(b)(6) motion tests the sufficiency of a complaint. Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011). “[T]he reviewing court must determine whether the complaint alleges sufficient facts ‘to raise a right to relief above the speculative level[,]'” and dismissal is appropriate only if the well-pleaded facts in the complaint “state a claim that is plausible on its face.” Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (quoting Twombly, 550 U.S. at 555, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 556).

At the motion-to-dismiss stage, a plaintiff need only “allege facts sufficient to state all the elements of [his] claim,” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003), and “the district court must ‘accept as true all well-pled facts in the complaint and construe them in the...