Grassick v. Holder D.R.I CV-09-587-PB 3/28/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Patricia Grassick

v. Civil No. 09-cv-587-PB [DNH Opinion No.

] Eric H. Holder, Jr., et a l .

MEMORANDUM AND ORDER

Patricia Grassick brings suit against her former employer,

the U.S. Department of Justice ("DOJ") , as well as several of

her former supervisors. She alleges that defendants violated

numerous federal statutes by discriminating against her on the

basis of her age and disabilities and by retaliating against her

when she attempted to vindicate her rights. Defendants have

filed a motion to dismiss, which I grant in part for the reasons

described below.

I. BACKGROUND

In July 2003, after more than a decade of work in other DOJ

offices, Patricia Grassick commenced a position as an Automated

Litigation Support Specialist ("ALS") at the United States

Attorney's Office ("USAO") for the District of Rhode Island

("DRI"). When Grassick was hired, she was responsible for creating and managing the litigation support department and

training support staff. She was informally assured that she

would not have to work overtime and that, outside of necessary

training, she would not have to travel.

Grassick alleges that she is disabled, and asserts that she

suffers from fibromyalgia, chronic lower back pain, lumbar

degenerative disk disease, and a litany of other medical

conditions.1 The gravamen of her claim is that, starting in June

2005, her supervisors failed to provide reasonable accommoda­

tions for her disability that would have allowed her to perform

certain job duties with less pain and fewer absences. She

asserts that her attempts to vindicate her rights led to

harassment and retaliation, including disciplinary measures and,

ultimately, the termination of her employment in March 2008. I

will briefly recount the facts that are central to Grassick's

voluminous complaint.

In June 2005, Grassick asked her supervisors, including

United States Attorney ("USA") Robert Clark Corrente and

Assistant United States Attorney ("AUSA") Kenneth Madden, if,

1 Grassick states that she also suffers from the following maladies: post-traumatic stress disorder; tinnitus; adjacent segment disease; chest pain; ventricular tachycardia; advanced ventricular ectopy; and carpal tunnel syndrome. 2 due to her inability to sit for extended periods of time, she

could be excused from traveling to a trial in Worcester,

Massachusetts. Her request was denied. Later that year, a

memorandum was circulated within the DRI that described the

responsibilities of the ALS position, including a requirement

that Grassick present evidence at all trials.

Grassick alleges that in July 2005, AUSA Madden created a

"drop file" for the purpose of gathering evidence to

substantiate the disciplinary actions he intended to take

against her. The following month, AUSA Madden requested that

Grassick submit weekly reports. She complied.

Grassick suffered an exacerbation of her pain symptoms

while working in the Rhode Island USAO, and underwent frequent

diagnostic and therapeutic procedures during work and non-work

hours, including at least two major surgeries in 2006 and 2007.

Many of Grassick's numerous requests for modifications to her

work and leave schedule were denied. AUSA Madden, beginning in

August 2005, told Grassick that he would not grant her requests

for advanced sick leave and directed her instead to request

leave without pay under the Family Medical Leave Act for her

medical appointments and procedures. That requirement led

3 Grassick to exhaust such leave prior to her termination.

In April 2006, and again in August 2006, Grassick requested

that she not be required to work overtime. AUSA Madden denied

both requests.

In June 2007, Grassick submitted a physician's note to her

supervisors stating that she should not be required to present

evidence at trials because the symptoms of her fibromyalgia had

worsened and she was unable to sit for more than 15 minutes at a

time. Grassick maintains that she had not intended to ask to

avoid trial presentation duties, and that she only sought to be

accommodated at the times when her pain was unmanageable and

unbearable. DOJ officials, however, understood her submission

to be a formal request for an accommodation to be relieved of

her trial duties. Grassick was asked to fill out certain

official forms; she did not, and her request for accommodation

was denied in July 2007.

That same month, Grassick proposed that, if she had to

attend trials, AUSAs should be required to ask the court for

leave to permit her to alternate between sitting and standing.

Alternatively, she suggested that other trained staff could

attend trials in her stead, or agents attending the trials could

4 be trained to present evidence. The DOJ determined that her

proposals were not viable.

In February 2008, Grassick was hospitalized for an

anxiety/pancreatitis attack. Her request for 80 hours of leave

without pay was denied, and she was deemed absent without leave.

The following month, Grassick's employment was terminated. The

removal letter noted Grassick's excessive absences, her absences

without leave, and her inability to perform the essential job

function of presenting at trials.

During her employment at the Rhode Island USAO, Grassick

filed several formal Equal Employment Opportunity ("EEO")

complaints based on various actions she characterized as

discriminatory or retaliatory. She also contacted her elected

representatives and other government officials to complain, and

several of those officials followed up with inquiries on her

behalf. Grassick alleges that DOJ officials harassed and

disciplined her in response to her EEO complaints and official

contacts.

Grassick appealed her discharge unsuccessfully through the

Merit Systems Protection Board ("MSPB") and obtained a final

decision in November 2009. On December 4, 2009, Grassick

5 brought suit in federal court in Rhode Island. Due to the

recusal of the judges in that district, the case has been

referred to the District of New Hampshire.

II. STANDARD OF REVIEW

In considering a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), I "accept as true the well-pleaded

factual allegations of the complaint, draw all reasonable

inferences therefrom in the plaintiff's favor and determine

whether the complaint, so read, sets forth facts sufficient to

justify recovery on any cognizable theory." Martin v. Applied

Cellular Tech.,

(1st Cir. 2002) . To survive a

motion to dismiss for failure to state a claim, the general

standard under Rule 8 of the Federal Rules of Civil Procedure 1

that the complaint must "state a claim to relief that is

plausible on its face." Ashcroft v. Iqbal, 129 S. C t . 1937,

1949 (2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim is facially plausible when it pleads

"factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer

possibility that a defendant has acted unlawfully."

(citations omitted).

When a plaintiff acts pro se, this court is obliged to

construe the pleadings liberally in favor of the pro se party.

See Ayala Serrano v. Lebron Gonzales,

(1st Cir.

1990) (citing Estelle v. Gamble,

(1976)). That

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir, of C.I.A., 843

F .2d 46, 49 (1st Cir. 1988).

Ill. ANALYSIS

Grassick alleges that the DOJ violated the Rehabilitation

Act,

et seq., the Administrative Procedures Act

("APA"),

et seq., the Age Discrimination in

Employment Act ("ADEA"),

et seq., the

Whistleblower Protection Act ("WPA"),

Stat. 16 (1989) (codified in scattered sections of 5 U.S.C.),

and the Notification and Federal Employee Anti-Discrimination

and Retaliation Act ("No FEAR Act"),

Stat. 566. She also alleges that the individual defendants are

7 liable for a civil conspiracy under the Racketeer Influenced and

Corrupt Organizations Act ("RICO"),

.

The DOJ has not sought to dismiss the claims brought under

the Rehabilitation Act and the ADEA.- In its motion papers, the

DOJ asserts, and Grassick concedes, that the No FEAR Act does

not create a private right of action. See Glaude v. United

States,

(Fed. Cir. 2007); Baney v.

Mukasey, No. 3:06-CV-2064-L,

, at *7 (N.D. Tex.

Mar. 14, 2008). Grassick also moves to voluntarily dismiss her

APA claims against the DOJ. PI.'s Opp'n to Defs.' Mot. to

Dismiss at 9, Doc. No. 33-1. I turn to the remaining claims.

A. Whistleblower Protection Act

Defendants argue that the court should dismiss Grassick's

WPA claims, insofar as Grassick fails to plead facts showing

that she exhausted her administrative remedies before the MSPB.

Additionally, defendants assert that the Federal Circuit, and

not this court, has jurisdiction to review Grassick's

whistleblower claims. Grassick maintains that she exhausted her

- In their motion for summary judgment, defendants assert that the Rehabilitation Act and ADEA claims cannot lie against the individual defendants. Grassick responds by clarifying that she has only sued the DOJ, and not the individual defendants, under those statutes. See P I .'s Opp'n to Mot. to Dismiss at 2, Doc. No. 33-1. MSPB remedies and that this court has jurisdiction over her

claims.

The WPA protects certain federal employees from agency

reprisals for whistleblowing activities. Employees believing

they have been discharged in reprisal for whistleblowing must

exhaust their administrative remedies through the Merit Services

Protection Board ("MSPB" or "Board") by filing an action on

their own in the MSPB, see

(b);

(b)(2), or by requesting that the Office of Special

Counsel initiate such an action. See Stella v. Mineta,

(B.C. Cir. 2002) (WPA requires employee to exhaust

administrative remedies in MSPB before seeking judicial review).

The MSPB has jurisdiction over federal employees' appeals

of job terminations that are alleged to have violated the WPA,

the ADEA, and the Rehabilitation Act. See Chappell v. Chao,

(11th Cir. 2004) (MSPB can entertain appeals in

cases where employees raise discriminatory discharge claims);

see also Amirmokri v. Dep't of Energy,

(Fed. Cir. 2009) (MSPB has jurisdiction over cases in which

employee asserts that discharge was in violation of WPA). Cases

before the MSPB that include both discrimination claims and

9 nondiscrimination claims are referred to as "mixed cases." See

Chappell, 38 8 F.3d at 1375; Amirmokri,

. "In

a mixed case, a final decision from the MSPB exhausts an

employee's administrative remedies and allows [the employee] to

seek judicial review." Chappell,

.

In an MSPB case involving claims of discrimination as well

as other types of claims, after the MSPB issues a final

decision, the employee has the option to file a petition for

Equal Employment Opportunity Commission ("EEOC") review of the

discrimination claims, file a district court action, or waive

the discrimination claims and file an appeal in the Federal

Circuit. Baker v. Sec'y, U.S. Dep't of Transp., No. 11-12853,

, at *3 (11th Cir. Jan. 25, 2012) (citing

). The district courts have jurisdiction over mixed

cases, in which the underlying MSPB case involved both

employment discrimination claims and WPA claims. See Kelliher v.

Veneman,

(11th Cir. 2002).

Exhibits to the original complaint (Doc. No. 1) filed in

this court show that Grassick filed an appeal of her termination

in the MSPB, and in that appeal, she asserted violations of the

ADEA, the Rehabilitation Act, and the WPA. See, e.g., Ex. A to

10 Compl., Doc. No. 1 (Grassick v. DOJ, No. PH-0752-08-0431-I-2,

Initial Order (MSPB Oct. 3, 2009)). On October 3, 2009, an MSPB

administrative judge affirmed Grassick's termination from the

DOJ, rejecting both her employment discrimination and

whistleblower claims.

That decision became final on

November 7, 2009. Grassick filed her complaint in this case on

December 4, 2009, within 30 days of the final MSPB decision.

See

(b) (action must be filed in district

court within 30 days of MSPB's final decision if employee has

not filed petition for EEOC review).

In light of the exhibits filed by plaintiff with her

original complaint, it is apparent that Grassick has exhausted

her administrative remedies in the MSPB for the claims at issue.

Accordingly, this court has jurisdiction over her WPA claims and

I deny defendants' motion to dismiss those claims.

B. Civil RICO

Grassick alleges that the individual defendants engaged in

a RICO conspiracy "to prevent, hinder, delay, dissuade,

obstruct, discourage, discredit, silence, harass, intimidate,

marginalize, bully, retaliate against, and punish [her] for any

criticism [she] brought against DOJ officials," and to "create

11 undue financial hardship for [her] ... to discourage [her]

from pursuing legal remedies." Compl. 126-27, Doc. No. 7-2.

She asserts that the individual defendants conspired to commit

the following predicate crimes to effectuate their scheme:

witness tampering and retaliation, mail and wire fraud, and

extortion. She further alleges that the racketeering scheme was

intended to defraud her and cause injury to her business and

property "by interfering with [her] right to earn wages in her

chosen profession as a DOJ Automated Litigation Support

Specialist[.]"

5 129.

Defendants present several arguments for dismissing

Grassick's RICO claims. I find persuasive their argument that

Grassick has failed to show that her termination was the

proximate result of a RICO predicate act. Because that argument

is dispositive and deprives Grassick of standing to maintain a

RICO claim, I need not reach defendants' other arguments.

1. Civil Actions under RICO

The RICO statute creates a cause of action for an

individual whose property or business has been injured by a

defendant's violation of

, which prohibits

racketeering activity and conspiring to commit racketeering

12 activity.

(c)-(d), 1964(c). RICO's civil

remedy provision is one means by which the statute promotes its

goal of "seeking the eradication of organized crime in the

United States." Beck v. Prupis,

(2000)

(citation omitted).

To be civilly liable under § 1962(c), a named defendant

must have participated in the commission of two or more

predicate crimes. Kenda Corp. v. Pot O'Gold Money Leagues,

Inc.,

(1st Cir. 2003); Miranda v. Ponce Fed.

Bank,

(1st Cir. 1991). The prohibited acts of

racketeering activity are listed at

(1), and

include witness tampering and retaliation, mail and wire fraud,

and extortion. A RICO plaintiff must show that an enumerated

predicate act caused the complained-of injuries. See Beck v.

Prupis,

(predicate act must cause damages

even when plaintiff brings suit based on alleged violation of

conspiracy provision of § 1962(d)); Miranda v. Ponce Fed. Bank,

. The predicate act must be the proximate

cause of those injuries, not only the cause-in-fact. Hemi

Group, LLC v. City of New York,

(2010);

Camelio v. Am. Fed.,

(1st Cir. 1998).

13 2. Analysis of Alleged Predicate Crimes

Grassick frames the adverse personnel actions instituted

against her as violations of RICO predicate crimes. Her

attempts to do so, however, are conclusory and inadequate. The

overwhelming majority of the actions that she characterizes as

RICO predicate offenses are not, and the few that might be RICO

predicates did not proximately cause the damages she suffered.

Grassick's complaint contains a sprawling table that spans

more than ten pages. The table lists each adverse action taken

against her, and then, without any explanation, lists the RICO

predicate alleged to have been violated. For example, the first

row of the table indicates that on June 15, 2005, USA Corrente

and AUSA Madden "[ilgnored medical information Plaintiff

provided regarding her disability." Compl. 5 150(a), Doc. No.

7-2. The adjacent box lists witness intimidation and witness

retaliation as the offenses committed by that conduct.

The

entire table includes sixty-four separate occurrences that

Grassick alleges constitute crimes under RICO.

The RICO predicate offenses asserted by Grassick are

witness tampering (

), witness retaliation (

), mail fraud (

), wire fraud (18

), and extortion (R.I. Gen. Laws § 11-42-2). Based

on her involvement in EEOC administrative proceedings -- during

which she presumably testified on her own behalf -- Grassick

asserts that a plethora of adverse workplace actions by

defendants constitute witness tampering and/or witness

retaliation. Where defendants' actions are alleged to involve

false statements and/or the use of mail or email, Grassick

asserts that defendants committed mail fraud and wire fraud.

Where the actions involved a supervisor who threatened

discipline or demanded that Grassick perform work she thought

outside of her job description, Grassick alleges extortion.

Like many other plaintiffs before her, Grassick attempts to

stretch the RICO statute to reach "well beyond the bounds of the

law's reasonable construction . . . . RICO simply was not

designed by Congress to encompass many of the creative, and even

'extraordinary, if not outrageous uses' for which plaintiffs

have labored the statute." Gross v. Waywell,

(S.D.N.Y. 2009) (quoting Sedima, S.P.R.L. v. Imrex

C o ., Inc.,

(2d Cir. 1984), rev'd on other

grounds,

(1985)). Here, with limited exception,

Grassick's complaint reveals a classic employment claim, in

15 which an employer is alleged to have discriminated and

retaliated against an employee on the basis of her disability,

age, and whistleblowing activities. That Grassick was pursuing

administrative remedies in proceedings where she was a witness

does not cause her garden-variety allegations of employment

discrimination to become a witness tampering or witness

retaliation criminal offense. That her supervisors used mail

and email and made statements she believes untruthful does not

turn those employment claims into mail and wire fraud criminal

offenses. And that her supervisors made work demands and

threatened discipline does not turn those claims into instances

of extortion. I shall briefly discuss each predicate crime

alleged by Grassick.

A common element of the crimes of wire and mail fraud is

that an individual must have "devised or intend[ed] to devise

any scheme or artifice to defraud."

, 1343;

see United States v. Stergios,

(1st Cir. 2011)

(stating elements of mail fraud); United States v. Czubinski,

(1st Cir. 1997) (stating elements of wire

fraud). "[T]he words 'to defraud' commonly refer 'to wronging

one in his property rights by dishonest methods or schemes,' and

16 'usually signify the deprivation of something of value by trick,

deceit, chicane or overreaching.'" McNally v. United States,

(1987) (quoting Hammerschmidt v. United

States,

(1924)). Grassick fails to

sufficiently plead a scheme to defraud. Her complaint ascribes

as fraudulent a number of unconnected statements made by

defendants that Grassick believes false, and a number of

defendants' allegedly retaliatory/discriminatory actions that

involved the use of mail or email. Grassick fails to allege any

deception by defendants that was intended to induce her to act

to her detriment. Especially in light of the heightened

standard for pleading fraud under Rule 9 (b), see N. Tim. Catholic

Educ. Programming Found., Inc. v. Cardinale,

(1st

Cir. 2009), Grassick has failed to state a viable claim that

defendants are criminally culpable for fraud.

Grassick contends that defendants committed the predicate

crime of extortion when they: denied requests for changes in her

work schedule; ordered her to work at times or places she did

not want to; offered a bad faith settlement of her EEO

complaints; questioned her medical needs; and terminated her

employment after threatening to do so. These are personnel

17 actions in which a supervisor exercised power over a

subordinate, and whether or not they are prohibited under a

civil remedial scheme, they are not criminal acts. None of the

facts alleged by Grassick indicate that defendants maliciously

threatened her with the extortionate intent necessary to impose

criminal liability under Rhode Island General Law § 11-42-2.

See State v. Price,

(R.I. 1998); State v.

Pule,

(R.I. 1982).

Grassick's list of acts that constitute the predicates of

witness tampering and retaliation is extensive. She utilizes

her status as a witness in the EEOC proceeding to frame every

action or statement adverse to her interests as an act of

witness tampering and/or retaliation. Specifically, she alleges

that defendants committed those predicate crimes when they:

ignored medical information regarding her disability; created a

drop file and otherwise gathered evidence against her; refused

to accommodate her work alteration and leave requests; ordered

her to submit weekly activity reports; ignored her workplace

accommodation requests; required that she travel outside of

Rhode Island; directed her to work late; placed her personal

information on a hard drive; suspended her; gave false

18 statements to EEOC investigators; sent misleading emails about

the state of the EEOC investigation; passed her over for

performance awards; threatened her with discipline; made demands

for additional medical documentation; failed to follow proper

chains of office hierarchy; offered her a reassignment to

another office; created records of certain conversations with

her; failed to ask for medical expert opinion before making

decisions; offered in bad faith to settle her pending claims;

withheld forms; did not provide her with sufficient support

staff; terminated her employment; stated that they did not want

her to return as an employee; and failed to follow proper

procedure in the EEOC process.

The only potentially applicable provision of the witness

retaliation statute,

, is subsection (e),J which

imposes liability on a person who retaliates against an

individual "for providing to a law enforcement officer any

truthful information relating to the commission or possible

commission of any Federal offense[.]" Section 1515(a) (4)

defines a "law enforcement officer" as an employee, officer, or

3 The other substantive provisions of the statute criminalize an individual who retaliates by killing or causing bodily injury. See

(a), (b) . 19 agent of the federal government who is "authorized under law to

engage in or supervise the prevention, detection, investigation,

or prosecution of an offense; or [who is] serving as a probation

or pretrial services officer[.]" Although Grassick complains of

many adverse actions that she asserts were retaliatory, she has

not alleged that she provided information to any individual who

fits the statutory definition of a law enforcement officer.

Section 1513, therefore, cannot constitute a predicate act for

RICO purposes.

Grassick attempts to utilize three different provisions of

the witness tampering statute,

, in her efforts

to show RICO predicate offenses. I start with her allegations

of intimidation under subsection (b). That provision imparts

criminal liability on an individual who "knowingly uses

intimidation, threatens, or corruptly persuades another person,

or attempts to do so, or engages in misleading conduct toward

another person, with intent to . . . (1) influence, delay or

prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to [] withhold testimony, or

withhold a record, document, or other object, from an official

proceeding . . .; or (3) hinder, delay, or prevent the

20 communication to a law enforcement officer or judge of the

United States of information relating to the commission or

possible commission of a federal offense."

(b)

(emphasis added).

The problem with Grassick's allegations of a violation of

subsection (b) is that not a single box in her table of wrongful

conduct provides any basis to conclude that the adverse

employment actions taken against her were connected to her

status as a witness before the EEOC or MSPB. She presents no

facts at all from which one might infer that the defendants

possessed the intent to: influence her testimony or the

testimony of another, cause her or anyone else to withhold

testimony or records, or affect the communication of information

about a federal offense. Because intent is an element of the

offense, Grassick has failed to sufficiently allege facts to

support the use of subsection (b) as a predicate offense for

RICO. See Arthur Andersen LLP v. United States,

(2005) (holding that there must be a nexus between

obstructive act and proceeding wherein alleged violator has "in

contemplation" the "particular official proceeding" he intends

to obstruct); United States v. Misla-Aldarondo,

, 69

21 (1st Cir. 2007) ("What's necessary is that there be sufficient

evidence that the defendant knew that an official proceeding had

begun, or that he believed one to be likely in the future, and

that he intended to influence any possible testimony in that

proceeding.").

Her use of subsection (d) as a predicate fails for similar

reasons. Under

(d), a person who "intentionally

harasses another person and thereby hinders, delays, prevents,

or dissuades any person from . . . attending or testifying in an

official proceeding . . . or attempts to do so" has committed a

crime. Grassick specifies the instances she believes constitute

intentional harassment as including: the placement of a memo

with sensitive information on a public hard drive; the sending

of a leave slip to her personal email address rather than her

work address; the withholding of an insurance form; and the use

of a work performance meeting to threaten discipline against

her. Although these occurrences may amount to harassment,

Grassick has not alleged that she, or any other person, was

dissuaded from attending or testifying at her administrative

hearings. Furthermore, under the attempt provision of

subsection (d), a culpable party must intend to dissuade someone

22 from testifying. See United States v. Charette,

(9th Cir. 2007) (reading intent to dissuade into

subsection (d)); United States v. Wilson,

(4th

Cir. 1986) (discussing precursor statute with same language, and

explaining that it covers conduct that does not actually

dissuade a person from testifying if the individual is

attempting to dissuade). As I have already explained, although

Grassick presents sufficient allegations of retaliation, she has

failed to allege facts from which I can infer that defendants

specifically intended to affect her testimony.

That leaves subsection (c) of

as the only

remaining basis for finding a RICO predicate. Subsection (c)

makes it a crime to "corruptly . . . obstruct[], influence[], or

impede[] any official proceeding, or attempt[] to do so."

Grassick's argument for applying this provision relies on four

statements defendants made, each in connection with the EEOC

proceedings, that she alleges were false or misleading. First,

she alleges that USA Corrente "falsely stated, under oath in

response to a question from an EEO investigator, that [he] was

unaware of any formal written policy for requesting reasonable

accommodation[.]" Compl. 5 150(u), Doc. No. 7-2. Second, she

23 alleges that another defendant falsely stated that two employees

"were 'clearly not' similarly situated" to her, and "failed to

disclose that [an employee] had also been granted advance sick

leave and was similarly situated to [her]."

5 150(cc).

Third, she alleges that two defendants sent a letter "falsely

assert[ing] during EEOC discovery that [another defendant] did

not propose a reassignment" in July 2007.

5 150 (jjj) .

Fourth, she alleges that USA Corrente "falsely testified that he

personally observed [her] present evidence" in another

proceeding when it was another employee that presented evidence

at that proceeding; and that other defendants subsequently

failed to correct his false testimony.

5 150(kkk).

These alleged misstatements all pertain to relatively minor

issues considering the scope of Grassick's claim, and her

invocation of them seems more in the nature of a niggling gripe

than a weighty claim of corruption or racketeering. She does

not allege a covert campaign to deceive an agency so much as a

few isolated incidents where defendants' statements were not in

accord with her recollection of events. Nonetheless, Grassick

has sufficiently alleged in her complaint that certain

defendants knowingly provided false statements in their EEOC

24 testimony and to EEOC investigators. Unlike the claims of

workplace discrimination and retaliation she attempts to frame

as RICO predicates, providing false statements in an agency

investigation or adjudication is outside the paradigm of a

classic employment claim, and may constitute a violation of

(c).4

Regardless of whether the allegedly false statements

constitute RICO predicate acts, however, they were not a

proximate cause of Grassick's claimed damages. Any false

statements would only have been intended to cover up, and not to

cause, the adverse employment actions taken against Grassick.

Moreover, Grassick's damages stem from her termination.

Grassick has not presented any argument for how those statements

proximately caused her termination. Because the potential RICO

predicates did not proximately cause her damages, they cannot

4 Based on the structure of the statute, in conjunction with the fact that giving deliberately false testimony is criminalized by other statutes, see, e.g.,

, it is possible that providing false testimony is not covered under

(c)(2). See United States v. Kumar,

(2d Cir. 2010) ("While the government may be correct that § 1512(c)(2) applies to testimonial evidence, we need not reach this issue of first impression in this circuit[.]"). But see United States v. Carson,

(6th Cir. 2009) (upholding conviction under

(c)(2) for a defendant who made false statements to a grand jury). 25 provide her standing to sue under civil RICO. See Miranda,

.

3. Lack of Proximate Cause Generally

The lack of proximate causation, while especially clear in

the case of false statements unrelated to personnel actions, is

more broadly applicable to the other predicates alleged by

Grassick. Even assuming that one or more of the numerous

factual allegations that I have determined do not constitute

RICO predicates do, in fact, constitute RICO crimes, Grassick

still has failed to show that any of those offenses proximately

caused her injuries. Grassick's injuries were caused by her

termination, and the removal of Grassick from her position was a

personnel decision that does not fit under the rubric of witness

tampering, extortion, or fraud.

In the context of an employee who claims to have been

wrongfully terminated, the employee cannot sustain a RICO claim

based on that termination "when the injury itself is not the

result of a predicate act."

As the First Circuit

recognized two decades ago in Miranda, "The cases are legion

that an employee who is fired for tattling about an employer's

wrongdoing, or for refusing to participate in or conceal an

26 illegal scheme, is not deemed to have been injured by reason of

a RICO predicate act."

. The court in Miranda did,

however, leave the door ever so slightly ajar for a jilted

employee: "While it may be theoretically possible to allege a

wrongful discharge which results directly from the commission of

a RICO predicate act . . . any such safe harbor would be

severely circumscribed."

; see also Camelio,

(quoting that statement from Miranda and finding that the

plaintiff's claims were "well outside of any safe harbor that

may exist").

Grassick seizes upon that dictum, and contends that unlike

Miranda, where the plaintiff "was terminated for refusing to

participate in a scheme of obstruction of justice; the

allegations here are that defendants terminated plaintiff as

part of their scheme to obstruct justice." Pi's Opp'n to Mot.

to Dismiss at 22, Doc. No. 33-1. Grassick's attempt to

distinguish the facts of her case, however, is unavailing.

Although she may have been wrongfully fired for discriminatory

and/or retaliatory reasons, her complaint provides no plausible

rationale to conclude that the act of terminating her employment

was fraudulent or extortionate, or was intended to obstruct

27 justice or affect her as a witness. In sum, even if Grassick

has sufficiently pled the existence of RICO violations other

than the false statements, she still would not have standing to

bring a RICO claim because the injury she suffered -- loss of

employment -- was not proximately caused by a RICO predicate

act.

As a final comment, I note that Grassick has not cited, nor

has my research unearthed, any case in which a plaintiff was

successfully able to maintain a RICO claim on similar facts.

There may yet be a case of employment discrimination and

retaliation that proves the exception, but the theories on which

Grassick relies in this action are deficient. It cannot be that

any cause of action based on discrimination or retaliation

becomes a RICO vehicle when an employee pursues available agency

or court remedies and thereby becomes a witness. And it cannot

be that any such cause of action becomes a RICO vehicle when an

employer threatens to discipline the employee or makes

misleading statements in conjunction with the use of mail or

email. If these hypotheticals, each stating Grassick's implicit

position, were law, our federal court system would be flooded

with complaints seeking treble damages under RICO for garden-

28 variety employment claims. That outcome cannot be what Congress

intended when it crafted the civil remedy provision of RICO as a

tool to combat organized crime.

IV. CONCLUSION

For the reasons above, I grant in part defendants' motion

to dismiss (Doc. No. 31) . I dismiss Grassick's claims under the

APA, the No FEAR Act, and the civil remedy provision of the RICO

statute. Her claims against the DOJ under the Rehabilitation

Act, the WPA, and the ADEA may proceed.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 28, 2012

cc: Patricia Grassick, pro se Artemis Lekakis, Esq.

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