Menoken v. Lerner

270 F. Supp. 3d 200
CourtDistrict Court, District of Columbia
DecidedSeptember 14, 2017
DocketCivil Action No. 2016-2071
StatusPublished
Cited by2 cases

This text of 270 F. Supp. 3d 200 (Menoken v. Lerner) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Menoken v. Lerner, 270 F. Supp. 3d 200 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

For more than two decades, plaintiff Cassandra M. Menoken has been litigating claims that the Office of Personnel Management (OPM) unlawfully discriminated against African Americans, including herself, in its administration of the Administrative Law Judge (ALJ) examination and selection process. In November 2000, the U.S. Equal Employment Opportunity Commission (EEOC) found that the 1993 ALJ examination included a scoring factor — awarding points for- partnership in a large law firm — that had an unlawful disparate impact based on race. EEOC ordered OPM to cease use of that scoring factor. In August 2012, Menoken filed a disclosure pursuant to 5 U.S.C. § 1213 with the Office of Special Counsel (OSC), an independent federal agency authorized to receive disclosures of wrongdoing, alleging that OPM continued to use the unlawful scoring factor and that EEOC' refused to enforce its order. Dissatisfied with OSC’s handling of her disclosure, Menoken filed this lawsuit under the Administrative Procedures Act (APA), seeking mandamus, declaratory, and injunctive relief requiring OSC to reopen her disclosure and process it in accordance with the requirements of 5 U.S.C. § 1213. OSC moved to dismiss this lawsuit on the grounds that Menoken lacks standing, her APA claims are precluded by the Civil Service Reform Act, and she has not shown that she is entitled to mandamus relief. See Def.’s Mot. to Dismiss [ECF No. 11—1]. 2 Because the Court finds that Menoken lacks standing, OSC’s motion to dismiss will be granted.

I. BACKGROUND

Menoken is an African-American attorney who “[a]t all times material to this action” has been employed by the EEOC, an executive branch agency charged with, among other things, adjudicating employment discrimination claims filed by federal employees and applicants. Am. Pet. ¶ 4. OPM is the federal agency that administers the selection of ALJs and maintains a register of candidates eligible for placement. Id. ¶ 5; see Menoken v. Whipple, 605 F.Supp.2d 148, 150 n.1 (D.D.C. 2009) (Menoken I), aff'd sub nom. Menoken v. Berry, 408 Fed.Appx. 370 (D.C. Cir. 2010) (per curiam). Menoken participated in the 1993 ALJ examination, but she was not selected for a position. Menoken I, 605 F.Supp.2d at 150; Am. Pet. ¶ 8. Since then, she has engaged in persistent litigation against OPM.

A. Menoken’s Claims Against OPM

In 1994, Menoken filed an EEOC complaint alleging that: the 1993 ALJ selection process violated Title VII of the Civil Rights Act because it had a disparate impact on African American and female applicants, OPM discriminated against her based on her race and sex, and OPM retaliated against her for challenging the ALJ selection, process. Menoken I, 605 F.Supp.2d at 150. In November 2000, EEOC ruled for OPM on all but one of Menoken’s claims. Id. Menoken prevailed on her claim that OPM had used an improper scoring factor in the 1993 ALJ examination, specifically a benchmark that awarded applicants additional points for partnership in large law firms (the “partner benchmark”). Id. EEOC determined that the partner benchmark created an unlawful disparate impact on the basis of race, and ordered OPM to cease use of the benchmark. Id.; see Am. Pet. ¶¶ 9-12. OPM was further ordered to post and provide notice to those agencies which request ALJ certificates of the finding that the 1993 ALJ examination relied on a discriminatory benchmark. See Ex. 2 to Def.’s Mot. to Dismiss [ECF No. 11-3] (Menoken v. Cohen, No. 100-95-7644X (EEOC June 29, 2001)) at 27. In a June 2001 remedial order, EEOC barred OPM, or any other agency, from relying on the partner benchmark “for any ALJ employment purpose.” Am. Pet. ¶ 13. The remedial order also required OPM to correct any lingering effects of its race discrimination prior to allowing future ALJ appointments to occur on the basis of the “scores assigned under the tainted examination.” Id. ¶ 14. EEOC later clarified that OPM was required to raise the scores of African Americans on the ALJ register who were presumptively harmed by the partner benchmark. Id. ¶ 15. EEOC determined that Menoken was not entitled to any individual relief because, even accounting for the effect of the partner benchmark, she would not have been selected for an ALJ position. See Ex. 2 to Def.’s Mot. to Dismiss at 27-28.

Shortly thereafter, Menoken filed appeals challenging EEOC’s findings and conclusions and OPM’s compliance with the remedial order. See Ex. 3 to Def.’s Mot. to Dismiss [ECF No. 11-4] (Menoken v. James, Nos. 01A15194, 01A14969 (EEOC May 16, 2003)) at 1, 7. In May-2003, EEOC issued a decision upholding its findings and conclusions, and rejecting Menoken’s noncompliance claim because it was “reasonably satisfied that [OPM] took appropriate steps in a timely manner to promptly adhere to and implement the directive's of the [EEÓC administrative judge].” Id. at 8; see Am. Pet. ¶ 21. Menoken filed a request for reconsideration of this decision. See Menoken v. James, No. 05A30918, 2005 WL 38762, at *2 (EEOC Jan. 3,2005).

In August 2003, while her reconsideration request was pending, Menoken filed a Title VII lawsuit against OPM in this court, raising- substantially similar claims as her prior EEOC complaints, including that: (1) OPM failed to comply with the remedial order, which required that OPM cease and correct unlawful discrimination against African American applicants caused by the partner benchmark; (2) the ALJ examination-unlawfully discriminated against African Americans in general and her in particular; and (3) the ALJ selection process unlawfully discriminated against female applicants in general and her in particular. 3 Menoken I, 605 F.Supp.2d at 151. In March 2009, the court granted OPM’s motion for summary judgment on all claims, finding OPM “provided abundant admissible evidence substantiating its full compliance with [EEOC’s] order to cease and correct the discrimination caused by the partner benchmark.” Id. at 152. The D.C. Circuit affirmed this decision and- concluded that “the record reveals no evidence to suggest that OPM continued to use the partner benchmark after the [AJ’s] 2000 ruling.” Menoken, 408 Fed.Appx. at 373.

In December 2011, Menoken filed a renewed request for EEOC to reconsider her 2001 merits and noncompliance appeals. EEOC declined because her “allegations regarding OPM’s alleged non-compliance and deception were fully litigated in federal district court.” Menoken v. Berry, No. 0520120172, 2012 WL 3060035, at *5 (EEOC July 11, 2012).

Menoken filed a pair of civil actions in this court against OPM, the Social Security Administration (SSA), and the Department of Health and Human Services (HHS) in January 2016. In the first, Meno-ken brought Title VII retaliation claims against OPM and -SSA,. alleging that they manipulated the ALJ selection process in March 2001 to deny her an ALJ position.

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Cite This Page — Counsel Stack

Bluebook (online)
270 F. Supp. 3d 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/menoken-v-lerner-dcd-2017.