Thompson v. Sessions

• Decision Date: 03 October 2017
• Docket Number: Civil Action No. 16–3 (RDM)
• Citation: 278 F.Supp.3d 227
• Parties: David THOMPSON, Plaintiff, v. Jefferson B. SESSIONS, III, Attorney General of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

278 F.Supp.3d 227

David THOMPSON, Plaintiff,

v.Jefferson B. SESSIONS, III, Attorney General of the United States, Defendant.

Civil Action No. 16–3 (RDM)

United States District Court, District of Columbia.

Signed October 3, 2017

David M. Thompson, Kill Devil Hills, NC, pro se.

Wynne Patrick Kelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

AMENDED MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiff David Thompson, proceeding pro se , brings this action against his former employer, the U.S. Department of Justice, for alleged violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. , the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 633a et seq. , the Due Process Clause of the Fifth Amendment, and the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Thompson claims that the Department unlawfully discriminated against him on the basis of his sex and age by, among other things, investigating him, reprimanding him, and, ultimately, constructively discharging him for what he characterizes as his use of profanity in the workplace. See Dkt. 7 at 1, 3–5, 7 (Am. Compl. ¶¶ 1, 7–12, 16). He also claims that the Department violated his rights under the Due Process Clause of the Fifth Amendment by conducting a "biased and unfair" investigation and grievance process. Id. at 7 (Am. Compl. ¶ 18). Finally, he claims that the Department maintains a policy and practice of not responding to FOIA requests in a timely manner. Id. at 7 (Am. Compl. ¶ 18).

The parties' cross-motions for summary judgment are now before the Court. Dkt. 18; Dkt. 19; Dkt. 20. The Department, for its part, contends that Thompson was disciplined for a legitimate, non-discriminatory reason—his abusive and inappropriate treatment of his colleagues—and that there is no evidence from which a reasonable jury could find that this reason was pretextual. Thompson disagrees and argues that the undisputed evidence shows that the Department did not discipline a similarly situated younger female employee who also used profane language in the workplace. The parties also dispute whether the Due Process Clause provides a remedy for any alleged bias or unfairness in the Department's investigation of Thompson's conduct or in its adjudication of his grievance. Finally, the parties disagree about the substance and merit of Thompson's FOIA claim.

As explained below, the Court first concludes that Thompson has failed to identify evidence from which a reasonable jury could find in his favor on his Title VII and ADEA claims. Accordingly, the Court will grant the Department's motion for summary judgment on these claims. Second, the Court concludes that Thompson lacks standing to pursue his due process claim and will therefore dismiss that claim. Third, the Court concludes that the existing record is insufficient to permit the Court to determine whether Thompson has standing to pursue his FOIA "policy and practice" claim and will allow Thompson to submit further evidence on this point. The Court will, therefore, deny the Department's motion for summary judgment on this claim and will deny Thompson's motion for summary judgment in full.

I. BACKGROUND

Because this decision ultimately concludes that the Department is entitled to summary judgment on Thompson's Title VII and ADEA claims, the Court must review the facts relevant to those claims in the light most favorable to Thompson. Talavera v. Shah , 638 F.3d 303, 308 (D.C. Cir. 2011).

At the time of the relevant events, Thompson was sixty years old and worked as a senior trial lawyer at the Department of Justice in the Environmental Defense Section ("EDS") of the Environment and Natural Resources Division ("ENRD"). Dkt. 20–2 at 3 (Thompson Aff. 2). Thompson joined EDS in 1989 and worked in that office until his retirement in 2008. Dkt. 19–2 at 63 (Grishaw Dep. 15:3); Dkt. 20–2 at 3, 6 (Thompson Aff. 2, 5); Dkt. 20–27 at 2. During his tenure with the Department, Thompson received numerous merit-based "special achievement awards," Dkt. 20–2 at 8 (Thompson Aff. 7), and "he consistently received performance appraisals at the highest available rating," Dkt. 20 at 4. For Thompson's last five years at the Department, he "exclusively or nearly exclusively" represented the United States in enforcement actions brought under CERCLA. Dkt. 20–2 at 4 (Thompson Aff. 3).

A. April 2: Email Incident

In the fall of 2007, Thompson's first-level supervisor, EDS Assistant Chief Mary Edgar, asked him to take over as "lead counsel" in the "Raytheon case," which was set to go to trial in April 2008. Dkt. 20–4 at 2–3 (Thompson Grievance); Dkt. 20–2 at 9–10 (Thompson Aff. 8–9). Thompson asserts that, when he took over the team, the "case was in disarray," requiring "50, 60, and 70 hour [work-]weeks." Dkt. 20–4 at 2. He further asserts that, while working on this case, he "was necessarily aggressive not only with the other side but also with [the Department's own] lawyers." Id. As the trial date approached, Thompson frequently worked from home "to avoid voicemail, [e]mail, [and] people coming into [his] office" while he was preparing. Dkt. 20–2 at 9 (Thompson Aff. 8). Moreover, because he did not "bother to get a Blackberry" or another Department-issued device capable of connecting to the Department's electronic networks, Thompson did not "have access to office [e]mails or ... files remotely from [his] home," Dkt. 20–3 at 3–4 (Thompson Dep. 24:5–7, 25:1–2).

On April 2, 2008, Thompson was preparing for trial at home when he realized that he needed to access an email from an expert witness. Dkt. 20–3 at 36 (Thompson Dep. 55:10–25). He had been up all night working on the case and was "dog-tired." Id. (Thompson Dep. 55:14). Rather than "driving ... [forty-five] minutes to an hour into work ... to download one [e]mail," Thompson left a voicemail for Mary Whittle, another attorney at EDS and his "number two chair on the [Raytheon ] case," asking her to retrieve the email from his office computer. Dkt. 20–2 at 10 (Thompson Aff. 9). Around noon, Thompson reached Whittle by telephone and, again, asked her to go to his office to access the email for him. Dkt. 20–3 at 37 (Thompson Dep. 56:3–7). When Whittle repeatedly refused to do so, "[Thompson] said, ‘F*** you,’ and [he] hung up the phone." Id. (Thompson Dep. 56:17–19); see also Dkt. 20–2 at 11 (Thompson Aff. 10); Dkt. 20–19 at 3 ("Three times I asked her to perform a simple trial preparation task, and three times she refused without explanation. THAT is when I finally lost my temper.")

Immediately after her call with Thompson, Whittle sent the following email to Edgar and Cherie Rogers, another EDS Assistant Chief:

Dave just yelled at me for not logging onto his computer and pulling the emails from [the expert witness]. He screamed "F*** you!" at the top of his lungs and hung up.

I want to be clear. If he does this again, I am not going to trial with him. If we are in trial, I am coming home. He has now threatened to hit me, said all kinds of inappropriate sexual things in front of me, screamed at me, blamed me, cursed at me, etc. I am a grown woman and a good lawyer, and this abuse is unacceptable.

Dkt. 20–5 at 2. Rogers forwarded Whittle's email to Letitia Grishaw, the EDS Section Chief and Thompson's second-line supervisor, and, the next morning, Edgar and Grishaw met with Whittle to discuss the incident. Dkt. 20–5 at 3; Dkt. 20–6 at 2.

During that April 3 meeting, Whittle stated that, over the previous few months, Thompson "repeatedly yelled at her angrily" using "obscenities and curses." Dkt. 20–6 at 2. She further explained that these incidents occurred "when the two of them were discussing legal or strategic aspects of the case and she ventured to disagree with him," id. , and when she refused "to perform tasks that [Thompson] should have done himself or [should have] requested [that] an LSA or paralegal" perform. Id. at 3. "Feeling intimidated by the repeated outbursts, [Whittle] found herself avoiding disagreements with [Thompson], and then [having Thompson] yell[ ] at her for not speaking up when he was wrong." Id. Whittle "recited another instance in which [Thompson] was yelling at her, and she felt her heart beating, and felt short of breath, and when she took a deep breath, [Thompson] yelled at her for ‘sighing’ about what he [had] said, apparently taking it as an indication of her disrespect for him." Id.

In addition to the April 2 incident, Whittle described a number of instances in which she believed Thompson had behaved "inappropriate[ly]." Id. For example, she told Edgar and Grishaw that Thompson "frequently called her a ‘b****;’ " that he described another female colleague as able to, in his words, "ruin a good wet dream;" that he "told her that he was suffering from a ‘bleeding d***’ " (he later explained that she had repeatedly asked him about a personal medical condition); that he had, in a "jok[ing]" manner, "leaned in toward her" after she had "made a somewhat flip remark" and "punched one fist into the palm of his other hand" (he later described this as a reference to Jackie Gleason); and that, after a male "member of the trial team" asked Thompson "if there was anything else he could do to help him," Thompson responded "by saying, ‘Yeah, wipe my a**.’ " Id. at 3–4. Whittle told her supervisors that "she had never felt that [Thompson] was making any sexual overture[s] to her," but that "she had grown tired of the locker-room conversation," and she expressed her fear that there would be "further scenes" if she went "on the road" to trial with Thompson. Id.

Later that same day, Grishaw asked Thompson to come to her office for a meeting. Dkt. 20–2 at 12 (Thompson Aff. 11). Although Thompson "had no prior notice of what the meeting was going to be about," he "assumed" it could concern his call with "Whittle ... the previous day." Id. at 12–13 (Thompson Aff. 11–12). When he arrived,...