Thompson v. Sessions
278 F. Supp. 3d 227
D.D.C.2017Background
- Thompson, a 60-year-old senior trial attorney at DOJ/ENRD, used profane, sexually explicit, and aggressive language toward colleagues over time; one April 2, 2008 incident (yelling “F* you” at colleague Whittle) triggered complaints and an internal investigation.
- Investigator found no sexual harassment but concluded Thompson engaged in repeated anger-laden tirades, condescending and inappropriate comments, and was unrepentant.
- On September 8, 2008, Thompson received a formal reprimand, was ordered to take interpersonal communications training, placed on a fixed schedule, and relieved of all trial work (reassigned to non-trial Attorney-Advisor duties).
- Thompson took sick leave, then retired shortly after receiving the reprimand and a disputed post-reprimand assignment; he later filed claims under Title VII (sex), the ADEA (age), the Fifth Amendment Due Process Clause, and FOIA (policy/practice of late responses).
- Court considered cross-motions for summary judgment: granted DOJ summary judgment on Title VII and ADEA claims; dismissed Due Process claim for lack of standing; denied summary judgment on FOIA policy/practice claim pending further standing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether investigation, reprimand, and reassignment violated Title VII/ADEA as discriminatory | Thompson: discipline was pretextual; a younger female (Whittle) used profanity and was not disciplined, and his record of strong performance made punishment suspicious | DOJ: articulated legitimate nondiscriminatory reason—pattern of abusive, anger-laden tirades, unrepentant attitude—so no evidence of discriminatory motive or pretext | Court: Held DOJ’s stated reason was legitimate; comparator evidence insufficient (Whittle’s conduct not comparable); grant summary judgment for DOJ |
| Whether denial of two non-monetary special achievement awards constituted adverse action under Title VII/ADEA | Thompson: denial of awards was discriminatory and actionable | DOJ: denial of non-monetary awards, without tangible harm, is not an adverse employment action | Court: Denial of non-monetary awards alone is not an adverse action; grant summary judgment for DOJ |
| Whether Thompson was constructively discharged (Title VII/ADEA) | Thompson: being relieved of trial work then given a trial-related assignment created impossible choice compelling retirement | DOJ: reassignment and the subsequent assignment were reasonable supervision/management responses; Thompson did not pursue clarification and voluntarily retired | Court: No intolerable working conditions shown; no evidence of discriminatory animus causing constructive discharge; grant summary judgment for DOJ |
| Whether Thompson may obtain injunctive relief for alleged procedural Due Process violations | Thompson: DOJ’s investigation/grievance were biased and unlawful and he seeks injunctive reform (not damages) | DOJ: Thompson lacks a concrete, imminent injury because he is retired and not subject to procedures; thus no standing | Court: Thompson lacks standing to seek prospective relief; due process claim dismissed |
| Whether Thompson may proceed on FOIA "policy or practice" claim for untimely responses | Thompson: DOJ has a pattern/practice of late FOIA responses and seeks injunction requiring timely responses in future | DOJ: disputes merits/adequacy of past responses and contends no ongoing injury | Held: Court could not resolve standing on summary judgment record; denied summary judgment for both sides and allowed Thompson to supplement evidence on future FOIA harm |
Key Cases Cited
- Talavera v. Shah, 638 F.3d 303 (D.C. Cir. 2011) (summary-judgment evidence viewed in favor of nonmoving party)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s and nonmovant’s burdens on summary judgment)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (definition of materiality and genuine dispute at summary judgment)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for discrimination without direct evidence)
- Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008) (elements of discrimination claim and role of McDonnell Douglas)
- Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109 (D.C. Cir. 2016) (standard for assessing whether employees are similarly situated)
- Lyons v. City of Los Angeles, 461 U.S. 95 (1983) (standing requirements for injunctive relief; no basis to enjoin future wrongdoing absent likely recurrence)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing burden varies with procedural posture)
- Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (tangible employment actions usually inflict economic harm)