Townsend v. United States, Civil Action No. 15–1644(BAH)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: BERYL A. HOWELL, Chief Judge
• Citation: 236 F.Supp.3d 280
• Parties: Mark William TOWNSEND, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Docket Number: Civil Action No. 15–1644(BAH)
• Decision Date: 21 February 2017

236 F.Supp.3d 280

Mark William TOWNSEND, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.

Civil Action No. 15–1644(BAH)

United States District Court, District of Columbia.

Signed February 21, 2017

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Mark Ramsey Heilbrun, Harlan Bradley LLP, Washington, DC, for Plaintiff.

Julie Shana Saltman, Paul Elias Werner, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Mark William Townsend, brings this action against his former employer, the United States Environmental Protection Agency ("EPA"), as well as the United States Department of Justice ("DOJ") and the United States of America (collectively, the "agency defendants"), and ten current and former employees of the EPA and DOJ (collectively, the "individual defendants").¹ First Amend. Compl.

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("FAC") ¶¶ 16–30, ECF No. 35.² The plaintiff alleges, in a 101 page complaint, violations of federal law separated into twenty-one different counts, under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq . ; Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq . ; the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq . ; the Privacy Act, 5 U.S.C. § 552a ; 42 U.SC. §§ 1983, 1985 ; and for a number of Constitutional violations sounding in tort, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). FAC ¶¶ 125–91; id. at 76–92, ¶¶ 124–74.³ These claims arise out of investigations into the plaintiff's alleged role in time-and-attendance fraud at the EPA, his demotion and the removal of his management responsibilities, and, ultimately, the termination of his employment. See generally FAC. Pending before the Court are the agency defendants' and the individual defendants' separate motions to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).⁴ For the reasons set forth

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below, the individual defendants' motion is granted and the agency defendants' motion is granted in part and denied in part.

I. BACKGROUND

The plaintiff, a Caucasian 68–year-old male, FAC ¶¶ 5, 15, was formerly employed by the EPA as a self-described "middle-manager," id. ¶ 1, "branch chief," id. ¶ 55, and "Senior Science Advisor," id. ¶ 15. The plaintiff's twenty-one claims rely on his allegations regarding five separate investigations by the EPA and DOJ into the plaintiff's role in time-and-attendance fraud at the EPA. See id. ¶¶ 7, 8, 82.⁵ The plaintiff does not dispute that all of the investigations were, at least facially, triggered by legitimate concerns about time-and-attendance misconduct within the agency. Indeed, as he admits, the plaintiff oversaw "myriad malfeasance concerning time and attendance fraud," id. ¶ 6, by staff "that did no work" in multiple EPA branches, id. ¶ 57. Both downplaying and excusing his role in this misconduct, however, the plaintiff contends that the general EPA practice was to avoid assigning work to "low performing employees, but to sign time cards indicating such employees were available to work." Id. Following the various investigations conducted by the EPA and by the U.S. Attorney's Office for the District of Columbia ("DC–USAO"), the plaintiff was eventually demoted from his role as branch chief, "stripped of all management responsibility," id. ¶ 94, and was eventually terminated on October 7, 2014, id. ¶ 99. Two other EPA managers were similarly removed from their management jobs due to involvement in this "significant misconduct," id. ¶ 50, although, in the plaintiff's view, they were not subject to the same level of punitive measures as the plaintiff, see, e.g. , id. ¶ 37 ("Despite Craig's criminal activities .... [she] was, upon information and belief promoted and allowed to retire with a higher pension") (emphasis in original); id. ¶ 50 ("the comparator

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Hernandez was removed from his job ... with knowledge that he engaged in significant misconduct for 20 years, yet Hernandez was neither admonished nor was his record in the least reflective of his disastrous performance and decades-long criminal misconduct."); id. ¶ 135 ("Beth Craig[ ] was allegedly rewarded for her political expedience and allowed to retire after allegedly committing massive time and attendance fraud during and within the context of the employment of John Beale.").

Against this backdrop of his perceived unfair treatment for his alleged role in the "widespread EPA time and attendance misfeasance and related corruption,"id. ¶ 4, the plaintiff asserts separate claims against the federal agencies responsible for conducting the investigations and taking adverse personnel actions affecting him, and against the individual defendants, who participated in the investigations and personnel actions, see id. ¶ 31 (explaining that the claims against the agency and individual defendants "tend [ ] not to overlap"). First, in his twelve remaining claims against the agency defendants, the plaintiff alleges that despite his admitted role in time-and-attendance fraud at the EPA, his demotion and termination from the EPA were part of an "attempt by EPA upper management ... to remove older employees in favor of a younger, more diverse body of line management." Id. Hence, he concludes that his demotion and termination were "based upon age, race and gender" discrimination, id. ¶ 94, in violation of Title VII and the ADEA, as well as the APA and the Privacy Act. Second, in his seven claims against the individual defendants, the plaintiff asserts that his constitutional and civil rights were violated in the course of the investigations into his role in time-and-attendance fraud. The factual allegations underlying these two sets of claims are briefly summarized below.

A. The Investigations of the Plaintiff

After the EPA's Office of the Inspector General ("OIG") received a "hotline" tip from another EPA employee, the OIG initiated an investigation of the plaintiff. Id. ¶ 45. On July 3, 2012, OIG officials, including defendant Mark Kaminsky, a Special Agent for OIG, interviewed the plaintiff regarding his involvement in time-and-attendance fraud by the plaintiff's subordinate, who suffered from multiple sclerosis. Id. ¶¶ 40, 42.⁶ According to the plaintiff, his former supervisor, Oscar Hernandez, had directed the plaintiff to permit this subordinate to work from home due to her medical condition, as she had been doing for approximately two decades. Id. ¶ 42. The plaintiff states that a "system" had been created to accommodate the subordinate's chronic illness: she would orally report her "time and attendance" to the office timekeeper, who would then, under instructions from Hernandez, input and approve the employee's time records. Id. ¶ 43. The plaintiff blames Hernandez, who is described as "Hispanic," id. ¶ 55, for "creat[ing], sustain[ing], and is fully responsible ... for all mistakes made in the timekeeping and leave policy for" the subordinate, id. ¶ 56. Yet, Hernandez was not disciplined for the two-decade long "system" which he designed, id. ¶ 50, but instead was "reassign[ed]" to another office and allowed to

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retire before the investigation into the plaintiff began, id. ¶ 46.

While blaming Hernandez for the system of regularly approving fraudulent timesheets for the plaintiff's subordinate, the plaintiff admits that, as a supervisor, he complied with instructions to sign off on the fraudulent time cards for this subordinate and apparently other "low performing employees," since, in his view, "the exact EPA customary practices were made obligatory upon him in his new position," id. ¶ 57. He also followed this same practice in his "previous two branch chief assignments," again placing the blame on another former supervisor. Id. According to the plaintiff, "both branches contained staff that did no work" and an EPA division director informed him that the EPA "condoned" the approval of fraudulent time cards "so as not to risk the ire of the union stewards." Id. In other words, the plaintiff makes clear that during his supervisory career at the EPA, he had participated as a "customary practice" in fraudulent time-and-attendance practices that were not limited to his approval of one subordinate's time cards.

After the interview, Kaminsky referred the plaintiff's case to the DC–USAO, id. ¶ 58, which initiated a criminal investigation, id. ¶ 59. The plaintiff attributes this second investigation as based "wholly upon the misleading representations of Kaminsky." Id. On April 23, 2013, DOJ conducted a "debriefing" session with the plaintiff and subsequently shared with the EPA Office of General Counsel ("OGC") "private, privileged information" relayed by the plaintiff during this session. Id. ¶ 69. Kaminsky and defendant Jim Smith, an Assistant United States Attorney with the DC–USAO, then allegedly "pressure[d] Plaintiff to plead guilty to ... [a] set of local...