273 F. Supp. 3d 188
D.D.C.2017Background
- Cassandra Menoken, an African American attorney, has repeatedly applied for ALJ positions via OPM’s ALJ Register dating to a 1993 exam; she prevailed in a 1994 EEOC action that led to eliminating a discriminatory “partner” benchmark.
- Menoken I (2003 federal suit) challenged OPM’s compliance with the EEOC order and alleged discrimination; court granted summary judgment for OPM, finding compliance and rejecting discrimination claims.
- In 2016 Menoken filed two pro se suits: Menoken II (against OPM and SSA) asserting retaliation based on a March 2001 OPM certificate used by SSA; Menoken III (against OPM and HHS) alleging discrimination (disparate impact) and retaliation based on OPM’s 2005 use of four small geographic certificates rather than one large certificate.
- Defendants moved to dismiss under Rule 12(b)(6); they argued res judicata/issue preclusion for Menoken II and failure to state claims in Menoken III.
- The court dismissed Menoken II retaliation claims: OPM claim was barred by res judicata (same cause of action and prior final judgment in Menoken I); SSA claim was barred by issue preclusion (Menoken I resolved OPM’s compliance with the EEOC order).
- In Menoken III the court denied dismissal of the disparate-impact claim as adequately pleaded against OPM and HHS and denied dismissal of retaliation against OPM (but granted dismissal of retaliation against HHS for failure to plead HHS’s knowledge or retaliatory intent).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Menoken II retaliation claim against OPM is barred by res judicata | Menoken says OPM/SSA manipulated the 2001 certificate to deny her consideration in retaliation for EEOC victory | OPM argues Menoken I already litigated and lost claims arising from the same facts; res judicata bars relitigation | Granted: barred by res judicata; dismissed against OPM |
| Whether Menoken II retaliation claim against SSA is precluded by issue preclusion | Menoken alleges SSA colluded with OPM to conceal the March 2001 certificate and deny her relief | Defendants say the prior judgment resolved OPM’s compliance and that determination precludes relitigation against SSA | Granted: barred by issue preclusion; dismissed against SSA |
| Whether Menoken III disparate-impact claim (OPM & HHS) states a claim | Menoken alleges using four small certificates had a disparate adverse effect on African American applicants and excluded her from consideration | Defendants argue the complaint lacks sufficient specific practice identification and causal/statistical allegations | Denied: complaint sufficiently identifies the challenged practice and alleges causal effect to survive 12(b)(6) (plaintiff must later prove statistics) |
| Whether Menoken III retaliation claim (OPM & HHS) states a claim | Menoken alleges OPM (and HHS) used the certificate scheme to prevent her from benefiting from prior EEOC relief | Defendants argue temporal gap and lack of plausible causal allegations, and no facts showing HHS knew of protected activity | Mixed: against OPM — denied (sufficient at pleading stage despite temporal gap); against HHS — granted (insufficient allegations of HHS knowledge/animus) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard; courts need not accept legal conclusions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
- Allen v. McCurry, 449 U.S. 90 (res judicata bars relitigation of claims that were or could have been raised)
- Ricci v. DeStefano, 557 U.S. 557 (distinguishing disparate-treatment and disparate-impact theories)
- Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (disparate-impact framework)
- Lewis v. City of Chicago, 560 U.S. 205 (what constitutes an "employment practice" for disparate impact)
- Watson v. Ft. Worth Bank & Trust, 487 U.S. 977 (causation and statistical proof in disparate-impact claims)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (anti-retaliation framework under Title VII)
- Swierkiewicz v. Sorema N.A., 534 U.S. 506 (plaintiff need not plead full prima facie case to survive motion to dismiss)