UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) EDWARD RICHARDSON, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-794 (RMC) ) BILLY J. SAULS, et al., ) ) Defendants. ) _________________________________ )
MEMORANDUM OPINION
Edward Richardson, a former employee of the Board of Governors of the Federal
Reserve System, sues eleven current and former Board employees pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), under which
plaintiffs may allege constitutional torts directly against individual federal employees. Mr.
Richardson claims that Defendants violated his constitutional rights by taking various improper
actions related to his job, personnel records, and complaints of discrimination, leading to his
termination and undermining his subsequent attempts to challenge that termination. Defendants
move to dismiss on the grounds that the claims have already been litigated or are barred by
Defendants’ qualified immunity, among other arguments. Because Counts One through Eight in
Mr. Richardson’s Amended Complaint have been litigated fully in a related case, they are barred
by the principles of res judicata and collateral estoppel and will be dismissed. Counts Nine and
Ten will be dismissed because they are untimely. Count Eleven will be dismissed for failure to
state a claim upon which relief may be granted. As a result, the Amended Complaint will be
dismissed in its entirety.
1 I. BACKGROUND
A. Amended Complaint in this Action
Because the facts of this case have been summarized repeatedly in this and related
actions, see Richardson v. Yellen, 167 F. Supp. 3d 105 (D.D.C. 2016) (Richardson I);
Richardson v. Board of Govs. of the Fed. Res. Sys., 248 F. Supp. 3d 91 (D.D.C. 2017)
(Richardson II), the Court provides only a brief summary.
Mr. Richardson worked as a conditional employee for the Board of Governors of
the Federal Reserve System (the Board) in its Law Enforcement Unit (LEU) from June 8, 2009
to June 7, 2010, when his employment was terminated. Am. Compl. for Damages (Am. Compl.)
[Dkt. 21] ¶¶ 3, 21-22. He is an African-American male and a former military police officer who
served in Iraq in 2003. Mr. Richardson previously alleged that his termination was illegal,
stemming from race-based and disability discrimination, see generally Richardson I, 167 F.
Supp. 3d 105, but those allegations are not the basis of the instant Complaint. Here Mr.
Richardson alleges numerous violations of his constitutional rights by some or all of the eleven
Defendants. As listed in the Complaint, Defendants are Billy Sauls, retired LEU chief; Albert
Pleasant, senior special agent within the Board’s Office of the Inspector General (OIG); Larence
Dublin, LEU lieutenant; Marvin Jones, LEU deputy chief of operations; Kevin May, Human
Resources specialist; Robert Bakale, LEU sergeant and Mr. Richardson’s direct supervisor;
Tyson Coble, LEU administrative lieutenant; Charles O’Malley, retired LEU assistant chief;
Margaret Shanks, Board ombudsman; Keisha Hargo, senior employee relations specialist in HR;
and Andre Smith, an Equal Employment Opportunity (EEO) specialist for the Board. See Am.
Compl. ¶¶ 4-14.
2 Mr. Richardson brings eleven counts by which he alleges constitutional torts
stemming from discriminatory harassment, improper tampering with documents and personnel
records, lying about his termination, and undermining his administrative complaints, among
other trespasses. Count One charges that Defendants Jones, Coble, Dublin, May, Sauls, Bakale,
and O’Malley violated Mr. Richardson’s Fourth Amendment rights when they allegedly
“conspired with one another to remove protected medical records from Plaintiff’s personnel file
that . . . should not have been in the defendants[’] possession.” Id. ¶ 168.
Counts Two and Five allege violations of Mr. Richardson’s rights under the
Fourth and Fifth Amendments, respectively, based on the claim that Messrs. Sauls and Pleasant
illegally obtained Mr. Richardson’s cell phone records “knowing the information used to obtain
those records to be falsified and [a] misrepresentation of facts,” and that they “willfully released”
his phone records to other people. Id. ¶¶ 83-84, 92, 178, 214-15.
Counts Three and Six allege that Mr. May violated the Fourth and Fifth
Amendments, respectively, when he “searched Plaintiff’s personnel file[,] retrieving only
documents that would be most character damaging to Plaintiff,” and “searched through
Plaintiff’s ongoing EEO activity file, removing specific documents, including his own EEO
affidavit and converted those documents to his personal use” by improperly mailing them to
JaCina Stanton of the Maryland Attorney Grievance Commission. Id. ¶¶ 188-89, 229-30.
Count Four alleges that Ms. Shanks and Messrs. Sauls, Bakale, Coble, Jones,
Dublin, and O’Malley violated Mr. Richardson’s Fifth Amendment rights and are liable for
wrongful termination because they “intentionally and callously remov[ed] 22 medical
documents” from Mr. Richardson’s personnel file; the absence of these medical records
3 allegedly deprived Mr. Richardson of the ability to document his medical “call-offs” when
requested; and his termination resulted. Id. at 28-30.
Count Seven alleges that Messrs. Bakale, Dublin, Jones, May, Sauls, Coble, and
O’Malley violated Mr. Richardson’s First Amendment rights by retaliating against him due to his
protected speech and, specifically, that Mr. Bakale “harass[ed]” Mr. Richardson when
confronted about the alleged removal of medical documents and asked Mr. Richardson why he
planned to “tak[e] the illegal removal of medical documents public and to the U.S. Dept. of
Veterans Affairs.” Id. ¶¶ 238-240.
Count Eight alleges that Messrs. Sauls and Pleasant violated Mr. Richardson’s
First Amendment rights by retaliating against him for engaging in protected speech following his
termination: Mr. Richardson claims that Messrs. Sauls and Pleasant “attempted to establish a
falsified investigation against Plaintiff and further attempt[ed] [to] have Plaintiff wrongfully
prosecuted by 4 separate law enforcement agencies,” in retaliation for Mr. Richardson’s “public
disclosures” concerning the removal of his medical documents. Id. ¶¶ 247-49. Also in Count
Eight, Mr. Pleasant is alleged to have investigated another employee for wrongful behavior, who
had not engaged in protected activities and who received a lesser discipline than Mr. Richardson.
Id. ¶¶ 250-52.
Count Nine alleges that Mses. Hargo and Shanks and Messrs. Jones, Sauls,
O’Malley, Bakale, Dublin, Coble, and May violated Mr. Richardson’s rights under the First and
Fifth Amendments by conspiring to retaliate against him and to deny his appeal of his
termination. The crux of count’s allegations is that Ms. Shanks’s purported reason for upholding
Mr. Richardson’s termination—that he had accumulated too many “tardies”—was pretextual and
a “malicious fabrication of evidence.” Id. ¶¶ 259-60. Mr. Richardson contends that Mr. May
4 had informed him that he was being terminated for failing to provide supporting documentation
for medical call-offs. Id. ¶ 262.
In Count Ten, Mr. Richardson complains of unequal treatment in violation of his
Fifth Amendment due process rights. See id. ¶ 280. Count Ten alleges that Mses. Shanks and
Hargo and Messrs. O’Malley, Jones, Sauls, Bakale, Dublin, Coble, and May failed to consider
prior misconduct of two white employees, Rocco Christoff and Darren Harris, when terminating
Mr. Richardson for comparable reasons in June 2010. Id. ¶¶ 273-78.
Finally, Count Eleven charges Mr. Smith, a senior EEO specialist with the Board,
with violations of Mr. Richardson’s rights under the First and Fifth Amendments for allegedly
failing to provide EEO counseling when Mr. Richardson submitted an administrative complaint
of discrimination in 2016, several years after his discharge. Id. ¶¶ 284-90. Specifically, Mr.
Smith allegedly deprived Mr. Richardson of his “right to free speech” by denying him adequate
investigation of his EEO claims and related counseling. Id. ¶¶ 286-87. Mr. Richardson also
contends that Mr. Smith violated the Fifth Amendment by denying him the opportunity “to be
heard and to bring his claims before an administrative judge or this Court.” Id. ¶ 288. He asserts
that Mr. Smith improperly forwarded new EEO charges filed by Mr. Richardson to Board senior
counsel Joshua Chadwick and that Messrs. Smith and Chadwick together “prevented Plaintiff’s
newly filed claims from moving forward” in the EEO process. Id. ¶ 156. Mr. Richardson
contends that Mr. Chadwick presented a “fabricated” EEO form to Mr. Richardson’s EEO
investigator, thus undermining his claim. Id. ¶ 162. He alleges that the failure to “conduct EEO
counseling . . . and a limited inquiry into Plaintiff’s new claims of discrimination” violated his
constitutional rights to due process and free speech. Id. ¶ 157. Related to this claim, Defendants
filed with the Court an exhibit, of which they ask the Court to take judicial notice, which is a
5 letter dated February 2, 2017, in which Mr. Smith informed Mr. Richardson that his complaint
was dismissed in accord with EEO regulations. See Mot. to Dismiss, Ex. 1, 2/2/2017 Letter to
Mr. Richardson (2017 Letter) [Dkt. 34-1] (citing 29 C.F.R. § 1614.107(a)(1), (3)); see also Am.
Compl. ¶¶ 156-58, 284-89 (referencing the 2017 Letter).
The Board moved to dismiss. See Mot. to Dismiss (Mot.) [Dkt. 34]. Mr.
Richardson opposed. Mem. in Opp’n to Mot. to Dismiss (Opp’n) [Dkt. 37]. Defendants replied.
Reply to Opp’n to Mot. to Dismiss (Reply) [Dkt. 39]. The motion is ripe for review.
B. Richardson I
Mr. Richardson sued the Board and Messrs. May, Sauls, Jones, Coble, Bakale,
Dublin, and Pleasant in a previous, related case. See Richardson I, 167 F. Supp. 3d at 109-12.
Richardson I concerned the Board’s alleged failures to provide reasonable accommodation for
Mr. Richardson’s “severe persistent asthma/allergies” and subsequent harassment by Mr.
Richardson’s superiors and co-workers. See id. at 108-09. Among alleged constitutional
violations, Mr. Richardson alleged that Mr. Pleasant “willingly and intentionally defamed [Mr.
Richardson’s] character to gain access to [his] cell phone records, by claiming that [Mr.
Richardson] was involved in a spoofing scandal against the Board”; and “access[ed] [Mr.
Richardson’s] cell phone records with malicious intent” “in violation of the Fourth Amendment.”
First Am. Compl., Richardson I (Richardson I Am. Compl.) [No. 14-cv-1673 Dkt. 8] ¶¶ 230-31.
Mr. Richardson also alleged that Mr. May knowingly removed from Mr. Richardson’s personnel
file a separation letter, the denial of an appeal, and an investigative affidavit, id. ¶¶ 235-36; and
that Messrs. Bakale and Coble retaliated against Mr. Richardson by removing medical
documents from his file so that he could be terminated before his probationary period was over.
Id. ¶ 243. Further, he alleged that all seven Richardson I defendants “knowingly, willingly, and
6 with malicious disregard for established laws, falsified testimony under penalty of perjury, while
knowingly defaming [Mr. Richardson’s] character, with intentional malice, to support their cause
that resulted in [his] termination.” Id. ¶ 238. Mr. Richardson also alleged that after he disclosed
certain protected activity to Messrs. Dublin, Jones, Sauls, and May, he was given undesirable
work assignments, including being “forced to work 3 different shifts weekly” until he was
terminated. Id. ¶ 243. The Richardson I complaint included allegations of denial of promotion,
denial of accommodation, and derogatory name-calling. Id. ¶ 253.
The Board moved to dismiss the Richardson I complaint as to all claims except
those brought under the Rehabilitation Act of 1973, 29 U.S.C. § 791. Among the claims
dismissed were those alleged by Mr. Richardson as constitutional torts against individual
defendants, which the Court evaluated as Bivens claims and determined were untimely. See
Richardson I, 167 F. Supp. 3d at 115-16.
II. LEGAL STANDARD
A motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “to give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citation and quotation marks omitted). Although a complaint does not need detailed factual
allegations, a plaintiff=s obligation to provide the grounds of his entitlement to relief “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is “plausible on its face.” Id. at 570. A
court must treat the complaint’s factual allegations as true, “even if doubtful in fact.” Id. at 555.
7 But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). In deciding a motion under Rule 12(b)(6), a court may consider the
facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated
by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc.
v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
III. ANALYSIS
A. Res Judicata and Collateral Estoppel
Defendants argue that Counts One through Ten are barred under the doctrine of
res judicata or the related doctrine of collateral estoppel, because the claims at issue in those
counts have been litigated fully in Richardson I. For purposes of clarity when comparing
Richardson I to the instant matter, this case will be referred to as Richardson III.
1. Res Judicata
“Under the doctrine of res judicata, or claim preclusion, a subsequent lawsuit will
be barred if there has been prior litigation (1) involving the same claims or cause of action, (2)
between the same parties or their privies, and (3) there has been a final, valid judgment on the
merits, (4) by a court of competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192
(D.C. Cir. 2006). The first element is satisfied “when the cases are based on the ‘same nucleus
of facts,’ because ‘it is the facts surrounding the transaction or occurrence which operate to
constitute the cause of action, not the legal theory on which a litigant relies.’” Capitol Hill
Group v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F. Supp. 2d 143, 149 (D.D.C. 2008)
(quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)).
“[R]es judicata (claim preclusion) bars relitigation not only of matters determined
in a previous litigation but also ones that a party could have raised.” Nat. Res. Defense Council
8 v. EPA, 513 F.3d 257, 261 (D.C. Cir. 2008) (quoting NRDC v. Thomas, 838 F.2d 1224, 1252
(D.C. Cir. 1988)); accord Allen v. McCurry, 449 U.S. 90, 94 (1980) (“[A] final judgment on the
merits of an action precludes the parties or their privies from relitigating issues that were or
could have been raised in that action.”). In evaluating whether two cases share the same nucleus
of facts, “the court will consider ‘whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their treatment as a unit
conforms to the parties’ expectations or business understanding or usage.’” Apotex, Inc. v. FDA,
393 F.3d 210, 217 (D.C. Cir. 2004) (quoting I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co.,
723 F.2d 944, 949 n.5 (D.C. Cir. 1983)).
a. Prior Litigation Involving the Same Claim or Cause of Action
Mr. Richardson argues that res judicata does not foreclose the claims at issue
because he did not, in Richardson I, “allege a Bivens claim,” and that Defendants’ arguments fail
because “simply naming several of the current Defendants[] under a Title VII cause of action
does not preclude Plaintiff from asserting his constitutional violation claims.” Opp’n at 4. Mr.
Richardson is incorrect to the extent that he believes res judicata does not foreclose new legal
theories, not previously argued, arising from the same fact pattern (or patterns). The question is
whether “the facts surrounding the transaction or occurrence which operate to constitute the
cause of action” have already been litigated—not whether the litigant relies on a different legal
theory the second time around. Capitol Hill Group, 574 F. Supp. 2d at 149; see also Apotex, 393
F.3d at 217-18 (“There are no new facts. [Plaintiff] is simply raising a new legal theory. This is
precisely what is barred by res judicata.”). Mr. Richardson points to Drake v. FAA, 291 F.3d 59
(D.C. Cir. 2002), for the proposition that his claims should not be barred by the doctrine of res
judicata because they are based on different legal authority (i.e., constitutional claims as opposed
9 to Title VII claims). In fact, however, Drake held that claims “based on a different nucleus of
facts than were those advanced” in an earlier action, and which had “not yet [been] in existence
at the time of the original action,” should not have been dismissed. Drake, 291 F.3d at 416.
Many of Mr. Richardson’s allegations in the Richardson III Amended Complaint
are derived from the same “nucleus of facts” presented in Richardson I and thus constitute an
impermissible attempt to relitigate “the same claim or cause of action” that has been dismissed.
Smalls, 471 F.3d at 192. Seven of the eleven defendants named in Richardson III—Billy Sauls,
Albert Pleasant, Larence Dublin, Marvin Jones, Kevin May, Robert Bakale, and Tyson Coble—
were also named in Richardson I. Moreover, Mr. Richardson’s allegations concerning these
Defendants in Richardson III overlap significantly with the factual allegations made in
Richardson I. Count One in this action charges Defendants Jones, Coble, Dublin, May, Sauls,
Bakale, and O’Malley with violating Mr. Richardson’s Fourth Amendment rights for allegedly
“remov[ing] protected medical records from Plaintiff’s personnel file that . . . should not have
been in the defendants[’] possession.” Am. Compl. ¶¶ 168, 171. Mr. Richardson made these
same allegations in Richardson I. See, e.g., Richardson I Am. Compl. ¶ 212; see also id. ¶¶ 26-
27 (Mr. Richardson allegedly observing Messrs. Sauls, Coble, and O’Malley with a folder that
may have contained the medical documents); id. ¶¶ 235-38 (alleging that Mr. May and other
defendants in Richardson I “intentionally and maliciously remov[ed] official medical documents
from my LEU file”); id. ¶ 243 (alleging that Messrs. Bakale and Coble allegedly removed
medical documents from Mr. Richardson’s file, leading to his termination). The facts
comprising Count One in Richardson III have already been litigated in Richardson I.
Counts Two and Five here allege violations of Mr. Richardson’s Fourth and Fifth
Amendment rights, respectively, based on the claim that Messrs. Sauls and Pleasant illegally
10 obtained Mr. Richardson’s cell phone records “knowing the information used to obtain those
records to be falsified and misrepresentation of facts,” and that they “willfully released” the
records to other people. Am. Compl. ¶¶ 83-84, 92, 178, 214-15. Richardson I alleged that Mr.
Pleasant “unlawfully accessed Mr. Richardson’s cell phone records by using Mr. Pleasant’s
investigation [into Mr. Richardson’s background] as a pretext,” and improperly “displayed” their
contents. Richardson I, 167 F. Supp. 3d at 109, 114. The Richardson III Amended Complaint
states that Mr. Richardson received discovery on July 1, 2014, which supports its claim against
Messrs. Sauls and Pleasant vis-à-vis the telephone records. See Am. Compl. ¶¶ 178, 214. July 1,
2014 was almost nine months before Mr. Richardson filed an amended complaint in Richardson
I. Thus, although Richardson I alleged wrongdoing concerning Mr. Richardson’s phone only on
Mr. Pleasant’s part, the record is clear that Counts Two and Five in Richardson III “could have
[been] raised” against Mr. Sauls. See Nat. Res. Defense Council, 513 F.3d at 261. The Court
finds that the claims in Counts Two and Five were or could have been litigated fully in
Richardson I.
Counts Three and Six in the present action allege that Mr. May violated Mr.
Richardson’s rights under the Fourth and Fifth Amendments, respectively, when he “searched
Plaintiff’s personnel file[,] retrieving only documents that would be most character damaging to
Plaintiff,” and “searched through Plaintiff’s ongoing EEO activity file, removing specific
documents, including his own EEO affidavit and converted those documents to his personal use”
by improperly mailing them to JaCina Stanton of the Maryland Attorney Grievance Commission.
Am. Compl. ¶¶ 188-89, 229-30. Mr. Richardson made functionally identical allegations in
Richardson I:
Kevin May engaged in prohibited personnel practices by removing my Board separation letter, Board Separation appeal letter, and his
11 EEO investigative affidavit, from my personnel file, and the [investigation report] from the Board’s property, and unlawfully converting the documents to his personal use. . . . JaCina Stanton, Esq. of the Attorney Grievance Commission of Maryland mailed me the package containing May’s statement and documents, as he mailed it to her, using his home address.
Richardson I Am. Compl. ¶¶ 51-53. Counts Three and Six have been litigated fully in
Count Four in Richardson III alleges that Ms. Shanks and Messrs. Sauls, Bakale,
Coble, Jones, Dublin, and O’Malley are liable for wrongful termination in violation of Mr.
Richardson’s Fifth Amendment rights because they “intentionally and callously remov[ed] 22
medical documents” from Mr. Richardson’s personnel file, so that he could not document his
medical absences and was terminated. Am. Compl. at 28-30. As described above, Richardson I
included the same allegations that Defendants improperly removed medical documents from Mr.
Richardson’s file. See, e.g., Richardson I Am. Compl. ¶¶ 212, 235-38, 243. As here, in
Richardson I, Mr. Richardson specifically linked the alleged removal of medical documents to
his allegations that Defendants lied about the number of Mr. Richardson’s “unexcused call-offs,”
or absences, and lied about whether he had submitted required medical documents. Id. ¶¶ 218,
221. The allegations in Richardson III are certainly part of the same “nucleus of facts” as in
Richardson I: they “are related in time, space, origin” and alleged motivation, and they would
form a “convenient trial unit” because of their interrelatedness. Apotex, 393 F.3d at 217. The
alleged facts underlying Count Four in the present action either could have been or have already
been litigated in Richardson I.
Count Seven alleges that Messrs. Bakale, Dublin, Jones, May, Sauls, Coble, and
O’Malley retaliated against Mr. Richardson after he engaged in protected speech and thereby
violated his First Amendment rights. The alleged retaliation involved comments relating to the
12 missing medical documents substantiating his absences. Am. Compl. ¶¶ 238-240. As discussed
above, that issue has been litigated fully. See Richardson I Am. Compl. ¶¶ 212, 235-38, 243.
Further, Richardson I claimed “whistleblower retaliation” when Mr. Jones failed to investigate
the removal of medical documents, and Mr. Bakale harassed and threatened to terminate Mr.
Richardson after he reported the removal of the documents from the file. Id. ¶ 245. The similar
allegations in Richardson III are part of the same “nucleus of facts” and have already been
litigated in Richardson I.
Count Eight in this action alleges that Messrs. Sauls and Pleasant retaliated
against Mr. Richardson for his protected speech after his termination: Mr. Richardson claims
that Messrs. Sauls and Pleasant “attempted to establish a falsified investigation against Plaintiff
and further attempt[ed] [to] have Plaintiff wrongfully prosecuted by 4 separate law enforcement
agencies,” in retaliation for Mr. Richardson’s “public disclosures” concerning the removal of his
medical documents from his personnel file. Am. Compl. ¶¶ 247-49. Additionally, Mr. Pleasant
is alleged to have investigated another employee, who had not engaged in protected activities,
but imposed a more lenient punishment than was imposed on Mr. Richardson. Id. ¶¶ 250-52.
The same allegations have already been litigated in Richardson I. See, e.g., Richardson I Am.
Compl. ¶¶ 233 (“Pleasant, with no probable cause, presented falsified documentation to 4 law
enforcement agencies for prosecutorial consideration against me”), 238 (“Sauls and Pleasant
knowingly and willingly engaged in a conspiracy to defame my character to promote malicious
prosecution, evidenced in Pleasant’s report.”). Mr. Richardson likewise raised the investigation
of the other employee as a comparator in Richardson I. See id. ¶¶ 162-64 (“I allege that [the
other employee] had no prior EEO activity against the Board; therefore, Pleasant did not seek
prosecutorial consideration against [him] . . . as he attempted to do with . . . myself. . . . I also
13 allege that [the other employee], to my knowledge possessed no known recorded disabilities, had
not previously requested a reasonable accommodation, and had no previous on-going EEO
activity.”). These facts have been litigated.
Count Nine in Richardson III alleges that Mses. Hargo and Shanks and Messrs.
Jones, Sauls, O’Malley, Bakale, Dublin, Coble, and May conspired to retaliate against Mr.
Richardson and to deny his 2010 termination appeal, in violation of his rights under the First and
Fifth Amendments. The crux of Mr. Richardson’s charge is that Ms. Shanks’s purported reason
for upholding Mr. Richardson’s appeal of his termination, that he had accumulated too many
“tardies,” was pretextual and thus a “malicious fabrication of evidence.” Am. Compl. ¶¶ 259-60.
Mr. Richardson asserts that Mr. May informed him that he was being terminated for failing to
provide supporting documentation for medical call-offs (i.e., the documentation that had been
allegedly improperly removed from his file). Id. ¶ 262. The complaint in Richardson I included
allegations that Mr. Bakale stated that Mr. Richardson’s “tardies” were a reason for switching
Mr. Richardson to a different shift. Richardson I Am. Compl. ¶¶ 68, 69, 71, 80, 182.
Richardson I also included allegations that Mr. Richardson’s appeal was improperly denied. Id.
¶ 238. However, the distinct claim that Mr. Richardson was given a “fabricated” reason for the
denial was not previously litigated in Richardson I. Count Nine will not be dismissed due to res
judicata.
Count Ten in this action alleges that Mses. Shanks and Hargo and Messrs.
O’Malley, Jones, Sauls, Bakale, Dublin, Coble, and May failed to consider prior misconduct of
two white employees, Rocco Christoff and Darren Harris, when Mr. Richardson was terminated
in June 2010 for reasons he believes to have been comparable. Am. Compl. ¶¶ 273-78. The
allegations raised in Count Ten of Richardson III are distinct from allegations made in
14 Richardson I, in which Mr. Richardson alleged “disparate treatment” and claimed that he was “of
a protected group and was treated less favorably . . . than all other LEU officers,” but did not
mention background investigations or evidence of misconduct in prior employment. Notably,
Messrs. Christoff and Harris are not mentioned in the Richardson I complaint. Richardson I Am.
Compl. ¶¶ 256-58. Count Ten will not be dismissed on res judicata grounds.
b. Same Parties or Their Privies
Seven of the eleven defendants named in Mr. Richardson’s Amended Complaint
in Richardson III—Billy Sauls, Albert Pleasant, Larence Dublin, Marvin Jones, Kevin May,
Robert Bakale, and Tyson Coble—were also named in Richardson I. For those seven original
defendants, the present action obviously involves the same parties.
c. Final Judgment on the Merits
The final requirement to find that a claim is barred by res judicata is that there
must have been a final, valid judgment on the merits by a court of competent jurisdiction in the
earlier litigated claim. Neither party challenges that this is a court of competent jurisdiction.1
The question on this element is whether the Court’s decision in Richardson I is a final judgment
on the merits. It is established law in the D.C. Circuit that a court’s dismissal for lack of
jurisdiction is not a decision on the merits and therefore does not have res judicata effect. See
Havens v. Mabus, 759 F.3d 91, 98 (D.C. Cir. 2014). In general, however, courts treat dismissal
on statute-of-limitations grounds “the same way they treat a dismissal for failure to state a
claim . . . : as a judgment on the merits.” Havens, 759 F.3d at 99 (quoting Plaut v. Spendthrift
1 The Court finds that it has jurisdiction over Mr. Richardson’s allegations of constitutional violations. See Bivens, 403 U.S. 388 (holding that federal courts may hear plaintiffs’ allegations of constitutional torts against individual federal employees). The Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. Venue is proper because the acts alleged in Mr. Richardson’s complaint occurred in the District of Columbia.
15 Farm, Inc., 514 U.S. 211, 228 (1995)); see also Musacchio v. United States, 136 S. Ct. 709, 716
(2016) (“Statutes of limitations and other filing deadlines ordinarily are not jurisdictional.”)
(internal quotation marks and citation omitted). Also relevant, Mr. Richardson now attempts to
relitigate in the same Court, and his Bivens claims are subject to the same statute of limitations
on which his Bivens claims in Richardson I were dismissed. See Richardson I, 167 F. Supp. 3d
at 115-16 (applying D.C. Code § 12-301 and dismissing Mr. Richardson’s Bivens claims as time-
barred); see also Smalls v. United States, 471 F.3d 186, 192-93 (D.C. Cir. 2006) (affirming
dismissal on res judicata grounds where the same Administrative Procedure Act claim had been
dismissed on statute-of-limitations grounds by another district court, and characterizing that
dismissal as a judgment on the merits). The Court’s holding in Richardson I was a final, valid
judgment on the merits for res judicata purposes.
Counts Two, Three, Five, Six, and Eight in the instant Complaint will be
dismissed in full as barred by res judicata.2 Counts One and Seven will be dismissed on grounds
of res judicata except as to Mr. O’Malley, and Count Four will also be dismissed except as to
Mr. O’Malley and Ms. Shanks. These defendants were added to this action when Mr.
Richardson amended his complaint on February 9, 2017 and were not named in Richardson I.
The claims against them in Richardson III will not be dismissed under the doctrine of res
2 Mr. Richardson argues that res judicata may not be raised in a motion to dismiss. See Opp’n at 9-10. As defendants point out, this is not the case; the D.C. Circuit has affirmed not only granting summary judgment but also dismissing a complaint on res judicata grounds. See, e.g., Sheptock v. Fenty, 207 F.3d 326 (D.C. Cir. 2013); Smalls, 471 F.3d 186.
16 2. Collateral Estoppel
Defendants argue that collateral estoppel, or issue preclusion, applies to all of Mr.
Richardson’s claims against Mses. Shanks and Hargo and Mr. O’Malley, and all such claims
should be dismissed. See Mot. at 8-9.3 Those three new defendants are named in Counts Nine
and Ten in the present action, but the Court finds that the doctrine of collateral estoppel does not
bar those counts. However, the claims raised in Counts One, Four, and Seven were already
litigated in Richardson I and the Court therefore addresses Defendants’ collateral estoppel
argument as to those counts vis-à-vis Mr. O’Malley and Ms. Shanks. Ms. Hargo is not named in
Count One, Four, or Seven.
Collateral estoppel, or issue preclusion, bars “successive litigation of an issue of
fact or law actually litigated and resolved in a valid court determination essential to the prior
judgment.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). A party is barred from relitigating an
issue if (1) the same issue was “contested by the parties and submitted for judicial determination
in the prior case”; (2) the issue was “actually and necessarily determined by a court of competent
jurisdiction in that prior case”; and (3) “preclusion in the second case [does] not work a basic
unfairness to the party bound by the first determination.” Canonsburg Gen. Hosp. v. Burwell,
807 F.3d 295, 301 (D.C. Cir. 2015) (quoting Yamaha Corp. of Am. v. United States, 961 F.2d
245, 254 (D.C. Cir. 1992)). As described above, Counts One, Four, and Seven all center on the
alleged removal of medical documents from Mr. Richardson’s personnel file, and his belief that
3 Defendants incorrectly characterize their argument as one based upon the theory of “offensive collateral estoppel,” under which a defendant may not relitigate identical issues already lost against another plaintiff. See Jack Faucett Assocs., Inc. v. AT&T, 744 F.2d 118, 126 (D.C. Cir. 1984). Here, of course, it is the plaintiff, Mr. Richardson, whose claim against new defendants would be precluded by a theory of collateral estoppel. Thus the operative theory is collateral estoppel and not offensive collateral estoppel.
17 his inability to produce those documents led to his termination. These issues were previously
contested by the parties and their dismissal by the Court constituted a determination by a court of
competent jurisdiction. See generally Richardson I, 167 F. Supp. 3d 105.
Issue preclusion here would not “work a basic unfairness” to Mr. Richardson.
Canonsburg Gen. Hosp., 807 F.3d at 301. Although Richardson III names new defendants and
alleges their involvement in the claims at issue, Mr. Richardson fails to advance any new
allegations that would materially change the facts or analysis on Count One, Four, or Seven.
Indeed, the allegations concerning Mr. O’Malley’s actions were covered at length in the
Richardson I complaint, including as related to medical documents and call-offs.4 Ms. Shanks
was not mentioned by name in Richardson I, but Mr. Richardson raises no new facts concerning
her involvement in the events at issue. Mr. Richardson claims that Ms. Shanks’s letter denying
Mr. Richardson’s termination appeal provided a dishonest reason for the termination. Am.
Compl. ¶ 199. However, because the central allegation in Count Four in Richardson III is based
on the termination itself and the removal of medical documents from the file, that claim has been
litigated. See, e.g., Richardson I, 167 F. Supp. 3d at 111 (discussing Mr. Richardson’s
allegations that he was terminated in part as a result of the improper removal of medical
documents from his file).5
4 In at least one instance, the Richardson I complaint explicitly grouped Mr. O’Malley with the defendants named in that case. See Richardson I Am. Compl. ¶ 186 (“[T]here is no evidence that any Defendant, including O’Malley, made any effort to ascertain the legitimacy of my disability condition . . . all while harassing me for call-offs that I had provided medical documentation for.”). 5 Separately, in Count Nine, Mr. Richardson raises allegations about this alleged fabrication of a reason for his termination, which the Court has found to be distinct from the issues litigated in Richardson I.
18 Counts One, Four, and Seven will be dismissed in full on res judicata and
collateral estoppel grounds.
B. Timeliness of Claims Under Bivens
Counts Nine and Ten remain. Each is a claim under Bivens and Defendants argue
that they are all untimely. “When a federal action contains no statute of limitations, courts will
ordinarily look to analogous provisions in state law as a source of a federal limitations period.”
Hampton v. Comey, No. 14-cv-1607, 2016 WL 471277, at *13 (D.D.C. Feb. 8, 2016) (quoting
Doe v. DOJ, 753 F.2d 1092, 1114 (D.C. Cir. 1985)); see also Richardson I, 167 F. Supp. 3d at
115 (construing Mr. Richardson’s arguments as Bivens claims and applying the statute of
limitations from D.C. Code § 12-301). In the context of a Bivens action claiming the deprivation
of constitutional rights, the D.C. Circuit has instructed that D.C. Code § 12-301 provides the
relevant limitations period. See Zhao v. Unknown Agent of CIA, 411 F. App’x 336, 336-37 (D.C.
Cir. 2010) (finding Bivens claims “barred by the applicable statute of limitations” and citing D.C.
Code § 12-301); see also Doe, 753 F.2d at 1114-15 (applying one-year statute of limitations for
defamation actions set out in D.C. Code § 12-301(4) to Bivens claim based on allegations of
dissemination of false and defamatory statements). D.C. Code § 12-301(8) provides a three-year
limitations period for actions “for which a limitation is not otherwise specially prescribed.”
Three years is therefore the longest period that could apply to Mr. Richardson’s Bivens claims.
Mr. Richardson’s amended complaint in Richardson I, in which he named some
(but not all) of the individual defendants in this action, was filed on March 20, 2015. Thus the
date of the alleged constitutional violations at issue in Richardson I must have been, at the
earliest, March 20, 2012. Count Nine in this matter alleges that Ms. Shanks gave Mr.
Richardson a “fabricated” reason for his termination on June 7, 2010, Am. Compl. ¶ 262, and
19 Count Ten alleges, also in 2010, that Defendants improperly considered allegations of prior
misconduct in deciding to terminate Mr. Richardson. Id. ¶ 273-77. These alleged acts occurred
well before the three-year limitations period that applied in Richardson I, and were even further
beyond the limitations period when Mses. Hargo and Shanks and Mr. O’Malley were named as
defendants in the present action.
Mr. Richardson contends that the statute of limitations for his Bivens claims
should be tolled because “much of the constitutional trespass violations were not to Plaintiff’s
knowledge” earlier. Opp’n at 10-11. However, Mr. Richardson alleges that he learned some
elements of the violations alleged in Counts Nine and Ten during contemporaneous meetings he
attended with Defendants. See Am. Compl. ¶¶ 262, 277. Moreover, Mr. Richardson fails to
specify the date on which he asserts he learned the necessary facts or what period of time should
be tolled. In the absence of admissible evidence, the Court cannot accept Mr. Richardson’s
broad and conclusory statement that he only learned of relevant details after the statute of
limitations had passed. Counts Nine and Ten will be dismissed as time-barred.
C. Qualified Immunity (Count Eleven)
Defendants urge the Court to dismiss Count Eleven because Mr. Smith, the only
defendant named therein, is protected by qualified immunity due to Mr. Richardson’s failure to
allege, with supporting facts, any violation of a clearly established constitutional right.
Count Eleven alleges that Mr. Smith, a senior EEO specialist with the Board,
violated Mr. Richardson’s rights under the First and Fifth Amendments by failing to provide
EEO counseling in response to an administrative complaint of discrimination Mr. Richardson
submitted after his termination. Am. Compl. ¶¶ 284-90. Mr. Richardson asserts that in
November 2016 he became aware of new information supporting a claim of race-based
20 discrimination, and in December 2016 he contacted Mr. Smith about the new EEO complaint he
wished to file. See id. ¶¶ 142-43. Mr. Richardson further asserts that Mr. Smith failed to provide
EEO counseling and otherwise mishandled this new EEO complaint. Id. ¶¶ 144-47. Based on
these alleged failures, Mr. Richardson argues here that Mr. Smith deprived him of his “right to
free speech” by denying him an adequate investigation of his EEO claims and related counseling,
and that Mr. Smith violated the Fifth Amendment by denying Mr. Richardson the opportunity “to
be heard and to bring his claims before an administrative judge or this Court.” Id. ¶¶ 286-88.
Mr. Richardson also alleges that Mr. Smith “collu[ded]” with another Board
employee, senior counsel Joshua P. Chadwick, to prevent newly alleged discrimination claims
from progressing administratively. Opp’n at 14-15. Mr. Richardson asserts that Mr. Smith
forwarded the new EEO claim to Mr. Chadwick, and that Mr. Smith and Mr. Chadwick together
“prevented Plaintiff’s newly filed claims from moving forward” in the EEO process. Am.
Compl. ¶ 156. Finally, Mr. Richardson alleges that Mr. Chadwick presented a “fabricated” EEO
form to Mr. Richardson’s EEO investigator, thus undermining Mr. Richardson’s EEO charge.
Id. ¶ 162. He alleges that the failure to “conduct EEO counseling . . . and a limited inquiry into
Plaintiff’s new claims of discrimination” constituted a violation of Mr. Richardson’s due process
and free speech rights. Id. ¶ 157.
Defendants acknowledge that Count Eleven is neither time-barred under the
applicable Bivens statute of limitations, nor res judicata. See Mot. at 5-6, 16. Instead, they
argue that the Court should dismiss Count Eleven for failure to state a claim upon which relief
may be granted, on the grounds that Mr. Smith is protected by qualified immunity because no
constitutional violations occurred, much less any “clearly established” violation of Mr.
Richardson’s constitutional rights. Id. at 20.
21 Government officials are protected “from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see
also Barham v. Ramsey, 434 F.3d 565, 572 (D.C. Cir. 2006). A right is “clearly established”
when “it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). In assessing an allegation of a
constitutional violation against a government official, courts may first address either whether the
defendant is entitled to qualified immunity or the merits of the constitutional claim itself. See
Pearson v. Callahan, 555 U.S. 223, 235-36 (2009) (“The judges of the district courts . . . should
be permitted to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.”).
Defendants argue that Mr. Smith did not violate any clearly established right of
Mr. Richardson’s. Rather, they contend, Mr. Smith was following EEO regulations when he
determined that Mr. Richardson’s claim should be denied and, moreover, that failure properly to
process an EEO complaint cannot amount to a constitutional violation. See Mot. at 30.6 As to
the first point, the Court agrees in part with Defendants. Mr. Richardson filed his new EEO
claim via email to Mr. Smith on December 4, 2016. See 2017 Letter at 1 (describing Mr.
Richardson’s emailed claim). Approximately 2 months later, on February 2, 2017, Mr. Smith
issued a letter to Mr. Richardson denying the claim. Id. In his letter, Mr. Smith cited EEO
regulations that provide for the dismissal of an entire complaint under certain circumstances,
6 As requested by Defendants, see Mot. at 30 n.7, the Court takes judicial notice of the 2017 Letter from Mr. Smith, which Mr. Richardson also referenced in his Amended Complaint. See Am. Compl. ¶¶ 156-58, 284-89.
22 including where the complainant has a pending EEO complaint raising the same issues, 29
C.F.R. § 1614.107(a)(1), or where there is a pending case in United States District Court raising
the same issues, provided that at least 180 days have passed since the filing of the administrative
complaint. 29 C.F.R. § 1614.107(a)(3). Mr. Smith’s application of § 1614.107(a)(3), however,
appears to have been premature, because at the time of the denial less than 180 days had passed
since Mr. Richardson filed his December 4, 2016 complaint. See 29 C.F.R. § 1614.107(a)(3)
(permitting denial if the claim is pending or has been litigated in district court, but only if 180
days have passed since the administrative complaint was filed).
Regardless, accepting all of Mr. Richardson’s allegations as true and construing
his claims liberally, see Fed. R. Civ. P. 8(a)(2), (f), Mr. Richardson has not plausibly alleged any
constitutional violation. As Defendants argue, other Judges in this Court have found that alleged
improper handling of an EEO complaint does not give rise to a constitutional violation.
Defendants cite a line of cases that stand for the proposition that a district court does not sit to
review the administrative handling of EEO complaints. See, e.g., Coulibaly v. Kerry, 213 F.
Supp. 3d 93, 143 (D.D.C. 2016) (“[Plaintiff] request[s] that the Court review federal agencies’
handling of his discrimination allegations . . . . [T]he Court cannot do so—it may only review de
novo [Plaintiff’s] Title VII claims which were the subject of the investigations with which he
alleges the agencies conspired to interfere.”); Koch v. White, 967 F. Supp. 2d 326, 336 (D.D.C.
2013) (finding that a complainant may not sue the Equal Employment Opportunity Commission
for improper handling of a discrimination charge and dismissing similar allegations against
another agency); see also Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997). If an employee
believes a claim has been mishandled he must first exhaust his administrative appeal remedies
and then proceed to a court for review of the substantive discrimination claim, not its
23 administrative processing. See Coulibaly, 213 F. Supp. 3d at 143. Mr. Richardson has already
pursued, in Richardson I, the discrimination claims at issue in the administrative complaint
denied by Mr. Smith. He has alleged no new, separate violation that is reviewable by the Court
now.
The allegations against Mr. Smith do not plausibly allege any constitutional
violation of a right that was “clearly established.” Mr. Smith is entitled to qualified immunity.
Count Eleven of Mr. Richardson’s complaint does not state a claim upon which relief may be
granted and will be dismissed without prejudice.
IV. CONCLUSION
For the reasons explained in this Memorandum Opinion, Counts One through Ten
of Mr. Richardson’s Amended Complaint will be dismissed with prejudice, and Count Eleven
will be dismissed without prejudice. A memorializing Order will accompany this Memorandum
Opinion.
Date: June 18, 2018 /s/ ROSEMARY M. COLLYER United States District Judge