Doe 1 v. American Federation of Government Employees
Civil Action No. 2020-1558
| D.D.C. | Aug 11, 2021Background
- J. David Cox resigned as AFGE National President after media reports alleging long‑running sexual misconduct and misuse of union resources; AFGE retained an outside investigator (Working Ideal).
- Annette Wells filed internal charges alleging Cox sexually assaulted/harassed and discriminated against her son (Doe #1); NEC approved a secret separation agreement allowing Cox to resign.
- Plaintiffs (AFGE employees, members, contractors, and family) sued Cox, AFGE, and 13 current/former AFGE officials asserting LMRDA fiduciary claims, §1981 race‑discrimination claims, numerous common‑law torts, and DCHRA claims.
- Three motions were before the court: plaintiffs’ motion to disqualify Bredhoff & Kaiser (counsel for AFGE and the individual defendants), AFGE/individuals’ Rule 12(b)(1)/(6) motion to dismiss, and Cox’s Rule 12(b)(5) motion to dismiss for insufficient service (he also joined the Joint Mot. to Dismiss).
- Court denied disqualification, denied dismissal for service defects, dismissed all claims against the Individual AFGE Defendants and most claims against AFGE and Cox, leaving: (1) Wells’s §501(b) LMRDA claim against Cox for misuse of union funds (Count 7); (2) Johnson’s §1981 wrongful‑termination claims against AFGE and Cox; and (3) Kabir’s race‑based hostile‑work‑environment claims against AFGE and Cox (under §1981 and the DCHRA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to disqualify Bredhoff & Kaiser for dual representation | Dual representation of AFGE and Individual Defs. creates conflict under Milone; union funds should not pay officers’ defense | Yablonski permits joint representation at early stages to delineate issues; no actual conflict shown | Denied — Yablonski exception applies at motion‑to‑dismiss stage; counsel not disqualified now |
| Scope of LMRDA §501 fiduciary claims (Counts 6 & 7) | Wells: §501 covers officers’ failure to prevent/discipline Cox’s sexual misconduct and misuse of resources | Defendants: §501 targets union funds/property or breaches of duties set by governing documents; plaintiffs fail to identify a governing‑document duty for much of alleged misconduct | Count 6 (broad fiduciary claims re sexual misconduct/failure to act) dismissed; Count 7 (misuse of funds) survives only as to Cox, dismissed as to Individual Defs. |
| §1981 disparate treatment / hostile‑work‑environment claims | Multiple plaintiffs allege racial/religious discrimination and hostile work environment by Cox and others | Defendants: §1981 covers race (not religion); many plaintiffs lack contractual relationship (Domino’s); individuals not shown to have directly participated | Most §1981 claims dismissed. Surviving: Johnson’s wrongful‑termination claim (AFGE & Cox) and Kabir’s race‑based hostile‑work‑environment claims (AFGE & Cox). Contractor/third‑party claims and religion‑based claims dismissed |
| Supplemental jurisdiction over numerous state/common‑law and DCHRA claims | Plaintiffs sought to keep broad array of state/tort claims against many defendants in federal court | Defendants: lack of diversity; many non‑federal claims do not share a common nucleus with surviving federal claims and predominate | Court declined supplemental jurisdiction over most non‑federal claims (dismissed without prejudice where appropriate); only Kabir’s DCHRA claim aligned and survived parallel to §1981 claim |
| Cox’s service of process defenses (timeliness, missing exhibits, second amended complaint service) | Cox: served >90 days after filing, exhibits omitted, second amended complaint not formally served | Plaintiffs: attempted service, alleged evasion; counsel for Cox consented to CM/ECF service | Denied — Court excused 7‑day delay in service (discretionary extension), missing exhibits were minor nonprejudicial defect, second amended complaint served via CM/ECF consent |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading must state a plausible claim).
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard).
- Milone v. English, 306 F.2d 814 (D.C. Cir. 1962) (union funds generally not available to defend officers accused of misconduct; potential conflict for dual representation).
- Yablonski v. United Mine Workers of America, 448 F.2d 1175 (D.C. Cir. 1971) (dual representation may be permissible at early stages to delineate issues).
- Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (U.S. 2006) (§1981 protects rights to make and enforce contracts; plaintiff must identify contractual rights).
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (plaintiff bears burden to establish subject‑matter jurisdiction).
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (U.S. 1998) (distinguishes merits from jurisdiction; insubstantial claims and jurisdiction).
- Grimes v. District of Columbia, 794 F.3d 83 (D.C. Cir. 2015) (timing of disqualification motions relative to dispositive filings).
- El‑Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (when a federal claim is so insubstantial as to lack jurisdiction).