Hester v. Mayorkas

1

CHARLES HESTER, Plaintiff, v. ALEJANDRO N. MAYORKAS, et al., Defendants.

No. 21-cv-639 (DLF)

United States District Court, District of Columbia

September 26, 2022

MEMORANDUM OPINION

DABNBY L. FRIEDRICH, DISTRICT JUDGE

Following his termination from the Department of Homeland Security's Transportation Security Administration (TSA) plaintiff Charles Hester brought this action against more than forty current and former government employees. See Compl. ¶ 1, Dkt. 1. Before the Court is the defendants' Motion to Dismiss, Dkt. 23. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

In 2015 and 2016, Hester was employed as a Lead Transportation Security Officer at the Northwest Florida Beaches International Airport in Panama City Beach, Florida. Compl. ¶ 1.^[1] He alleges that during those years, he was the subject of three frivolous investigations and other harassment by TSA management. Id.

First in 2015, Kimberly Serrano asked supervisor Paul Farnan to investigate a “minor procedural violation” involving Hester. Id. ¶ 5. In their report, Serrano and fellow employee Darrell Nowell recommended that Hester be suspended for fourteen days and allegedly made false statements that negatively impacted Hester's mid-year performance evaluation scores. Id. ¶¶ 5, 8-11, 13, 36. Assistant Federal Security Director Eric Fisher did not suspend Hester but did issue him a Letter of Reprimand, while other employees who committed similar procedural violations were not disciplined. Id. ¶¶ 5, 17.

Second, later that year, Nowell and supervisor Timothy Justice directed Hester to carry out a supervisory task, and Hester refused on the grounds that he was not obligated to perform it. Id. ¶ 21. Hester asked coworker Royce Bailey to write a statement in his support, but Bailey allegedly changed his statement at Justice's direction. Id. ¶ 22. Justice then wrote a report accusing Hester of failure to perform work duties, leading to another allegedly fraudulent investigation. Id. ¶¶ 26, 30-31, 43. Hester's superiors again recommended a fourteen-day suspension, which was this time approved and upheld on appeal. Id. ¶¶ 33, 44, 49.

Third, a final allegedly fraudulent investigation was led by Thomas Guglielmo in 2016. Id. ¶¶ 50-53. The investigation resulted in Justice recommending that Hester be terminated. Id. ¶ 54. Fisher accepted that proposal, and Hester was removed from federal service on January 20, 2017. Id. ¶¶ 55-56.

Throughout this time period, Hester alleges ongoing harassment by fellow TSA employees. For example, he states that Justice publicly accused him of taking too many bathroom breaks, forced him into a closed-door meeting without any witnesses, and improperly denied his sick leave requests. Id. ¶¶ 14, 18-19, 67. Hester reported the harassment and fraudulent investigations to TSA management; when he received no response, he elevated his complaints to several other TSA officials and individuals at the Department of Homeland Security (DHS) Office of Inspector General, none of whom took action. Id. ¶¶ 27-29, 38-39, 47, 87, 90-91. Hester then took his complaints to the U.S. Office of Special Counsel (OSC), but he alleges that the OSC improperly withheld records of its investigation when Hester refused to present identification. Id. ¶¶ 75-77.

Finally, Hester filed two informal complaints with the Equal Employment Opportunity Commission (EEOC) in December 2015 and February 2016. Id. ¶¶ 15, 35. As to his first complaint, Hester alleges that EEOC case managers and counselors improperly extended the counseling period without notifying him, delayed contacting TSA management, and delayed issuing Hester's Notice of Right to File a formal EEO complaint. Id. ¶¶ 15, 32, 34. As to the second, Hester alleges that EEOC employees inordinately delayed his initial interview and falsely claimed that he had agreed to traditional counseling, despite his request for alternative dispute resolution. Id. ¶¶ 41-42. Hester subsequently filed a formal EEO complaint on June 10, 2016. Id. ¶ 69. During the ensuing investigation, Hester alleges that TSA employees made false statements and that adjudication was delayed because the EEOC case manager sent his files to the wrong office. Id. ¶¶ 57-61, 67-69. His complaint therefore sat idle for fifteen months until an Administrative Law Judge (ALJ) transferred the case. Id. ¶¶ 69, 73. On April 25, 2019, an ALJ issued a decision in favor of the agency, and DHS implemented that decision as its final agency decision. Id. ¶¶ 81, 84. Hester appealed to the EEOC's Office of Federal Operations, which affirmed the ALJ's decision on June 16, 2020, see id. ¶ 93; Def.'s Mot. to Dismiss Ex. A (EEOC Decision), Dkt. 23-1, and denied Hester's motion to reconsider on November 23, 2020, Compl. ¶ 97; Def.'s Mot. to Dismiss Ex. B (EEOC Decision on Request for Reconsideration), Dkt. 23-2.^[2]

Proceeding pro se, Hester filed this suit on March 8, 2021. He brings eighty-one claims against employees of DHS, TSA, and EEOC in their personal and official capacities for violations of agency policy, regulations, statutes (including FOIA and Title VII), and the Constitution. On October 13, 2021, the defendants moved to dismiss the complaint under, among other things, Federal Rule of Civil Procedure 12(b)(6). Dkt. 23.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially plausible claim “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a plaintiff need not plead “detailed factual allegations,” he must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.; see Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”).

Well-pleaded factual allegations are “entitled to [an] assumption of truth,” Iqbal, 556 U.S. at 679, and the plaintiff receives “the benefit of all inferences that can be derived from the facts alleged,” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). When a plaintiff proceeds pro se, the Court must consider the complaint “in light of all filings, including filings responsive to a motion to dismiss.” Johnson, 927 F.3d at 541 (quotation marks omitted). While a pro se complaint is entitled to a liberal construction, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the assumption of truth does not extend to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quotation marks omitted).

III. ANALYSIS

Hester's complaint alleges violations of agency policies, an Executive Order, regulations, statutes (including various criminal statutes, FOIA, and Title VII), and the Constitution (including the First, Fourth, and Fifth Amendments). Most of these counts will be dismissed for failure to state a claim upon which relief can be granted because they lack a private cause of action. The Court will address Title VII separately.

A. Counts that lack a private cause of action

“[A]bsent a viable cause of action, the court must dismiss for failure to state a claim.” Bauer v. Marmara, 942 F.Supp.2d 31, 37 (D.D.C. 2013), aff'd, 774 F.3d 1026 (D.C. Cir. 2014). “Like substantive law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286, 291 (2001). “The judicial task is to interpret [a] statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Id.

Under this basic test, Hester's claims for violations of agency policies, codes of conduct, and ethics regulations fail to state a claim for relief. See Compl. ¶¶ 3, 5-8, 10, 18, 27, 29, 31, 37, 41, 43, 46, 52, 56, 58, 108 (citing various TSA and DHS handbooks and management directives); id. ¶¶ 5-9, 26, 39 (citing 5 C.F.R. § 2635.101). Agency rules and regulations cannot provide a cause of action absent one in a statute. Sandoval, 532 U.S. at 291 (“Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”). And there is no reason to think that the policies and regulation Hester cites were at all intended to describe any judicial remedy. See, e.g., TSA Handbook to MD 1100.73-3 App'x B, Dkt. 23-4 (laying out internal procedures for handling violations); DHS MD 0480.1 at 5, Dkt. 23-5 (same);^[3] United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008) (explaining that violations of 5 C.F.R. § 2635.101 may result in “disciplinary action” but not liability). Therefore, neither the agency policies nor the regulation provide Hester with a cause of action. See Roberts v. Cameron-Brown Co., 556 F.2d 356, 360 (5th Cir. 1977) (holding that a HUD handbook provided no private cause of action); Jud. Watch, Inc. v. Clinton, 880 F.Supp. 1, 5 n.3 (D.D.C. 1995) (holding that 5 C.F.R. § 2635.101 provides no private cause of action).

The same is true for the three claims under Executive Order 12674. See Compl. ¶¶ 6-9. “As a general rule, ‘there is no private right of action to enforce obligations imposed on executive branch officials by executive orders.'” Chen Zhou Chai v Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995) (quoting Facchiano Constr. Co. v. Dep't of Labor, 987 F.2d 206, 210 (3d Cir. 1993)). Executive Order 12674 sets forth “[p]rinciples of...