Townsend v. United States (236 F. Supp. 3d 280, 2017)

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Mark William Townsend, brings this action against his former employer, the United States Environmental Protection Agency (“EPA”), as well as the United States Department of Justice (“DOJ”) and the United States of America (collectively, the “agency defendants”), and ten current and former employees of the EPA and DOJ (collectively, the “individual defendants”). First Amend. Compl. (“FAC”) ¶¶ 16-30, EOF No. 35. The plaintiff alleges, in a 101 page complaint, violations of federal law separated into twenty-one different counts, under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.; the Privacy Act, 5 U.S.C. § 552a; 42 U.SC. §§ 1983, 1985; and for a number of Constitutional violations sounding in tort, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). FAC ¶¶ 125-91; id. at 76-92, ¶¶ 124-74. These claims arise out of investigations into the plaintiffs alleged role in time-and-attendance fraud at the EPA, his demotion and the removal of his management responsibilities, and, ultimately, the termination of his employment. See generally FAC. Pending before the Court are the agency defendants’ and the individual defendants’ separate motions to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the individual defendants’ motion is granted and the agency defendants’ motion is granted in part and denied in part.

I. BACKGROUND

The plaintiff, a Caucasian 68-year-old male, FAC ¶¶5, 15, was formerly employed by the EPA as a self-described “middle-manager,” id. ¶ 1, “branch chief,” id. ¶ 55, and “Senior Science Advisor,” id. ¶ 15. The plaintiffs twenty-one claims rely on his allegations regarding five separate investigations by the EPA and DOJ into the plaintiffs role in time-and-attendance fraud at the EPA. See id. ¶¶ 7, 8, 82, The plaintiff does not dispute that all of the investigations were, at least facially, triggered by legitimate concerns about time- and-attendance misconduct within the agency. Indeed, as he admits, the plaintiff oversaw “myriad malfeasance concerning time and attendance fraud,” id. ¶ 6, by staff “that did no work” in multiple EPA branches, id. ¶ 57. Both downplaying and excusing his role in this misconduct, however, the plaintiff contends that the general EPA practice was to avoid assigning work to “low performing employees, but to sign time cards indicating such employees were available to work.” Id. Following the various investigations conducted by the EPA and by the U.S. Attorney’s Office for the District of Columbia (“DC-USAO”), the plaintiff was eventually demoted from his role as branch chief, “stripped of all management responsibility,” id. ¶ 94, and was eventually terminated on October 7, 2014, id. ¶ 99. Two other EPA managers were similarly removed from their management jobs due to involvement in this “significant misconduct,” id. ¶ 50, although, in the plaintiffs view, they were not subject to the same level of punitive measures as the plaintiff, see, e.g., id. ¶ 37 (“Despite Craig’s criminal activities .... [she] was, upon information and belief promoted and allowed to retire with a higher pension”) (emphasis in original); id. ¶ 50 (“the comparator Hernandez was removed from his job ... with knowledge that he..engaged in significant misconduct for 20 years, yet Hernandez was neither admonished nor was his record in the least reflective of his disastrous performance and decades-long criminal misconduct.”); id. ¶ 135 (“Beth Craig[] was allegedly rewarded for her political expedience and allowed to retire after allegedly committing massive time and attendance fraud during and within the context of the employment of John Beale”).

Against this backdrop of his perceived unfair treatment for his alleged role in the “widespread EPA time and attendance misfeasance and related corruption,” id. ¶ 4, the plaintiff asserts separate claims against the federal agencies responsible for conducting the investigations , and taking adverse personnel actions affecting him, and against the individuahdefendants, who participated in the investigations and personnel actions, see id. ¶ 31 (explaining that the claims against the agency and individual defendants “tend[ ] not to overlap”). First, in his twelve remaining claims against the agency defendants, the plaintiff alleges that despite his admitted role in time-and-attendance fraud at the EPA, his demotion and termination from the EPA were part of an “attempt by EPA upper management ... to remove older employees in favor of a younger, more diverse body of line management.” Id. Hence, -he concludes that his demotipn and termination were “based upon' age, race and gender” discrimination, id. ¶ 94, in violation of Title VII and. the ADEA, as well as the APA and. the Privacy Act. Second, in his seven claims against the individual defendants, the plaintiff asserts that his constitutional and civil rights were violated in the course of the investigations into his role in time-and-attendance fraud.,The factual allegations underlying these two sets of claims are briefly summarized below.

A. The Investigations of the Plaintiff

After the EPA’s Office of the.Inspector General (“OIG”) received a “hotline” tip from another EPA employee, the OIG initiated an investigation of the plaintiff. Id. ¶45. On July 3, 2012, OIG officials, including- defendant Mark Kaminsky, a Special Agent for OIG, interviewed the plaintiff regarding his- involvement in time- and-attendance fraud by the plaintiffs subordinate, who suffered from multiple sclerosis. Id. ¶¶ 40, 42. According to the plaintiff, his former- supervisor, Oscar Hernandez, had directed1 the plaintiff to permit this subordinate td work from home due to her medical condition, as she had been doing for approximately two decades. Id. ¶ 42. The plaintiff states that a “system” had been created to accommodate the subordinate’s chronic illness: she would orally report her “time and attendance” to the office timekeeper, who would then, under instructions from Hernandez, input and approve the employee’s time records. Id. ¶43. The plaintiff blames Hernandez, who is described as “Hispanic,” id. ¶ 55, for “creating], sustaining], and is fully responsible ... for all mistakes made in the timekeeping and leave policy for” the subordinate, id. ¶ 66. Yet, Hernandez was not disciplined for the two-decáde long “system” which he designed, id. ¶50, but instead was “reassign[ed]” to another office and allowed to retire before the investigation into the plaintiff began, id. ¶ 46.

• While blaming Hernandez for the system of regularly approving fraudulent timesheets for the plaintiffs subordinate, the plaintiff admits that, as a supervisor, he complied with instructions to sign off on the fraudulent time cards for this subordinate and apparently other “low performing employees,” since, in his view, “the exact EPA customary practices were made obligatory upon him in his new position,” id. ¶ 57. He also followed this same practice in his “previous two branch chief assignments,” again placing the blame on another former supervisor. Id. According to the plaintiff, “both branches contained staff that did no work” and an EPA division director informed him that the EPA “condoned” the approval of fraudulent time cards “so as not to risk the ire of the union stewards.” Id. In other words, the plaintiff mákés clear that during his supervisory career at the EPA, he had participated as a “customary practice” in fraudulent time-and-attendance practices that were not limited to his approval of one subordinate’s time cards.

After the interview, Kaminsky referred the plaintiffs case to the DG-USAO, id. ¶ 58, which initiated a criminal investigation, id. ¶ 59. The plaintiff attributes this second investigation as based “wholly upon the misleading representations of Kamin-sky.” Id. On.April 23, 2013, DOJ conducted a “debriefing” session with the. plaintiff and subsequently shared with the EPA Office of General Counsel (“OGC”) “private, privileged information” relayed by the plaintiff during this session. Id. ¶ 69. Kaminsky and defendant Jim Smith, an Assistant United States Attorney with the DC-USAO, then allegedly “pressure[d] Plaintiff to plead guilty to ... [a] set of local and federal claims ,.. [but] Plaintiff refused to admit to criminal activity.” Id, ¶ 71, The plaintiff also ■ alleges that, over the course of several months, Smith “threatened Plaintiff - .(through counsel) with imminent indictment-forcing Plaintiff to. the very edge of sanity, deep into a depressive state, and. suicidal.” Id. ¶73.

•In October 2013, a third ■ investigation began when defendant James-Jones, the Assistant Administrator for EPA’s Office of Chemical Safety and Pollution Prevention, allegedly “arranged for his long-term employee ,.. [defendant] Marty Monell, to directly assist [Jones] in conducting an(other) unconstitutional investigation,.of Plaintiff.” Id. ¶ 82. According to the plaintiff, “Monell both unduly pressured the Plaintiff’s ‘office timekeeper’ and promised the timekeeper she would keep her job if the timekeeper ... would provide enough information to implicate and/or remove Plaintiff.” Id. ¶83. The plaintiff alleges that Monell issued a Report of Investigation in November 2013, which report apparently concluded that the plaintiff was “ ‘guilt[y]’ in a ‘time card fraud’ scheme,” id. ¶ 5, although the plaintiff describes the report as “defamatory” and containing “false statements,” id.; id. at 85 ¶ 152 (noting that “Monell investigation” resulted in “a recommendation of adverse action against Plaintiff’). The plaintiff blames this particular investigation on defendant Louise Wise, who served as the Deputy Administrator for EPA’s Office of Chemical Safety and Pollution Prevention, and was the “Proposing Official” in a subsequent removal action against the plaintiff as a result of the internal investigations into the plaintiffs role in the time-and-attendance fraud. Id. ¶ 85.

In February 2014, the plaintiff explains that he was “asked -by a. Member of Congress or their- staff, .to describe-his experience to the .Wall Street Journal,” and the plaintiff “permitted his story to -be profiled,” even though he was unaware at the time of the posture of the criminal investigation. Id. ¶ 76. Subsequently, the Wall Street Journal published an “editorial” arguing that the EPA should focus its investigative efforts not on the plaintiff, but instead on EPA officials involved in the matter of John Beale, id. who, for over a decade as an EPA employee, “misle[d] his supervisors into believing he was on assignment for the Intelligence Community (‘IC’) when he was apparently actually home (and on various travel) doing little to no work for the United States Government and/or EPA,” id. ¶61; see also id. ¶¶ 62, 81. “Within days of the Wall Street Journal editorial,” the plaintiff was informed that another Assistant United States Attorney, who is not named as a- defendant in this matter, had already told Kaminsky in late 2013 that DOJ would not pursue a prosecution of the plaintiff. Id. ¶ 77; see also id. ¶ 74.

According to the plaintiff, revelations about John Beale’s long-term fraudulent activity contributed to a fourth investigation after Administrator McCarthy was, in the plaintiffs words, “excoriated in the media and before Congress for her role in the John Beale debacle,” and looked “for a sacrificial scapegoat to deflect attention from her own wrongdoing.” Id. ¶ 81; see also id. ¶62 (“EPA upper management sought political cover ... by scapegoating Plaintiff with ... pretextual misfeasance, while seeking to plaee younger, longer-term employees into the void and assuring continued acquiescence and loyalty.”). Without providing any clarity on the timing, the plaintiff alleges that McCarthy ordered EPA' attorneys in OGC and in EPA Labor and Employee Relations (“LER”) “to initiate an illegal investigation in support of removal proceedings regarding Plaintiff.” Id. ¶81. According to the plaintiff, this fourth investigation not only “blam[ed] Plaintiff,” it also “served [EPA’s] ulterior purpose ... of pretext for the ongoing initiative to target older employees within the Division from which Plaintiff was ultimately removed, and more broadly within the Agency.” Id. ¶ 81; see also id. ¶ 88 (explaining that “Administrator McCarthy and [Deputy Administrator] Perciasepe gave the order to terminate Plaintiff [ ]or constructively remove him by making his working conditions intolerable, thereby forcing him to involuntarily retire or kill himself’). In this investigation, the plaintiff alleges that “EPA personnel from OGC and LER ... pressured Plaintiffs fellow branch chiefs ... in an attempt to obtain inaccurate sworn statements from the branch chiefs that would assist with a planned removal action against Plaintiff.” Id. ¶ 85.

B. The Plaintiffs Demotion and Removal

Although the FAC is vague about dates, at some point in 2013, the Risk Assessment Division of EPA, where the plaintiff worked, was reorganized. Id. ¶ 127 (referring to the “office reorganization begun in 2013”). By this time, the plaintiffs misconduct had already been subject to internal investigations by EPA and review by the DC-USAO, but “[t]he EPA continued to delay addressing Plaintiffs status, leading Plaintiff to believe he was being fully integrated into his reorganized Division .... ” Id. ¶ 89. Apparently, his belief about “being fully integrated” was abruptly dashed on September 5, 2013, when the plaintiff alleges that he was “asked” by Tala Henry, whom he describes as a “putative supervisor,” id. ¶ 127, to “accept the constructive demotion as part of a staffing plan that defendants Cleland-Hamnett and Henry (with the approval of defendant Jones) had devised for the Risk Assessment Division.” Id. ¶ 128. The plaintiff describes the manner in which he was “asked” variously as “strong-armed,” id. and “openly pressured and threatened,” id. 1193. He further details Henry’s words, alleging that Henry asked him “to ‘step aside’ as branch chief in order to make room for ‘younger’ employees who had been selected and sponsored by the EPA to attend management training.” Id. ¶ 93 (emphasis in original); id. ¶¶ 128, 143 (repeating alleged statement by Henry). The plaintiff “refused to step aside despite the threats and pressure.” Id. ¶ 94.

The following day, on September 6, 2013, Henry informed the plaintiff that he would be reassigned “from Branch Chief to a Senior Advisor position in order to make management positions available to younger staff who had just completed training at American University.” Id. ¶ 143. The plaintiff alleges that this reassignment amounts to a constructive demotion since he was “stripped of all management responsibility,” id. ¶ 94, “to provide headroom for two younger and less-qualified African-American females,” including one who is “now encumbering the position from which Plaintiff was removed.” Id. ¶ 4; see also id. ¶¶ 36,130-31; 145^6.

The plaintiff alleges that the reorganization was part of an “ongoing initiative to target older employees,” id. ¶81, which was planned and executed by a supervisor, Wendy Cleland-Hamnett and Tala Henry, with the approval of defendant James Jones, id. ¶ 171, so that the division would “reflect a younger, more ‘diverse’ management group,” id. ¶ 90. As part of the plan, Cleland-Hamnett allegedly “instructed” Tala Henry to “ ‘sweep’ older managers from their positions under the pretext of a so-called ‘staffing- plan.’ ” Id. ¶ 91; id. ¶ 36 (referring to “the plan to displace older subordinates, including but not limited to Plaintiff’); id. ¶ 171 (“Henry pressured Plaintiff to accept a non-managerial position in order to promote younger, more diverse (and far less qualified) employees, which has had a devastating disparate impact upon Plaintiffs [sic] and numerous others similarly impacted.”).

Over six months after Henry told the plaintiff of his reassignment to a new position as Senior Advisor, on April 14, 2014, he was moved to a “new, shared office space and humiliated by sharing with a junior staff member who had previously ... been a subordinate of Plaintiff.” Id. ¶ 96. This office move was part of what the plaintiff describes as a “continuing hostile work environment and disparate treatment,” prompting him to file complaints with the EPA Office of Civil Rights (“OCR”). Id. ¶ 89. The plaintiff also alleges that Henry “routinely walked by the new office and laughed at Plaintiff — asking him how ‘things looked on the way out’ and how ‘did he like his new little man cave.’ ” Id. ¶ 95.

The plaintiff was eventually notified “that he was to be removed from the EPA and from federal service,” and, on July 31, 2014, he was “escorted from the building.” Id, ¶ 96. • Although the plaintiff states he “responded aggressively” to the removal notice and “fil[ed] numerous statements,” “Administrator McCarthy ordered Jim Jones to formally remove Plaintiff effective October 7, 2014.” Id. ¶¶ 98-99.

C. The Plaintiffs Appeal Before The Merit Systems Protection Board

On .October 17, 2014, the plaintiff appealed his removal to the Merit Systems Protection Board (“MSP.B”). Id. ¶ 100. After the MSPB accepted the “mixed case appeal,” id, ¶ 101, the plaintiff was afforded considerable discovery, and took depositions, of “key” agency officials — including Jones, Kaminsky, and Wise, id, ¶¶ 86, OT-OS — which allegedly show “criminal wrongdoing on the part of Jim Jones (the- Deciding Official) and Kamirisky[,] ,,. among several others,” id. ¶ 101. The plaintiff explains that he received a “confusing and incongruous MSPB ‘Order’ ” on September 17, 2015, “noticing a hearing in Plaintiffs matter for December 3, 2015.” Id. ¶115.. Nonetheless, as of the filing of .the plaintiffs complaint, his MSPB appeal remains unresolved. ■

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(6)

To .survive a mption to dismiss under Federal’ Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss, — U.S. -, 134 S.Ct. 2056, 2067, 188 L.Ed.2d 1039 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). A claim is facially plausible when the plaintiff .pleads factual content that is more than “’merely consistent with’’ a defendant’s liability,” but “allows the court to draw the reasonable inference that "the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not .required to withstand a Rule 12(b)(6) motion, “more than labels and conclusions” or “formulaic recitation of the elements of a cause of action” are needed for .‘“grounds’” .of “‘entitle[ment] to relief,’ ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 46-47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), and “nudge[ ] [the] claims across the line from conceivable to plausible,” id. at 570, 127 S.Ct. 1955. Thus, “a complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must .consider the complaint in its. entirety, accepting all factual allegations in the complaint as true, even, if doubtful in fact, and construe all reasonable inferences in favor of the plaintiff., Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (“We assume the truth of all well-pleaded factual allegations and construe reasonable inferences, from those allegations, in a plaintiffs favor.” (citing Sissel v. U.S. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014))). The Court “need not, however, ‘accept inferences drawn by [a] plaintiff! ] if such inferences are unsupported by the facts set out in the complaint.’ ” Nurriddin, 818 F.3d at 756 (alteration in original) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

B. Motions to Dismiss Employment Discrimination Claims Generally

The Supreme Court has instructed that “the precise requirements of a prima facie case can vary depending on the context” and “should not be transposed into a rigid pleading standard for discrimination cases.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). In view of this “emphasis on flexibility,” the D.C. Circuit has adopted, for claims asserted under various anti-discrimination statutes, a “general version of the prima facie case requirement: ‘the plaintiff must establish that (1) she [or he] is a member of a protected class; (2) she [or he] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.’” Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)); see also Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007); George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005); Krodel v. Young, 748 F.2d 701, 705 (D.C. Cir. 1984) (“an individual plaintiff claiming disparate treatment must first make out a prima facie case — ie., must demonstrate sufficient facts to create a reasonable inference that race, sex or age was a factor in the employment decision at issue.”). The burden of showing a prima facie case at the pleading stage “is not onerous.” Id. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089 (1981).

The pleading of direct evidence of intentional discrimination will “generally entitle a plaintiff to a jury trial,” Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011), and gives clear rise “to an inference of discrimination” sufficient to establish '-a prima facie case, see Swierkiewicz, 534 U.S. at 510-11, 122 S.Ct. 992 (“[I]f a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case”). One form of direct evidence is “a statement that itself shows racial or gender bias in the [employment] decision.” Vatel, 627 F.3d at 1247; see also Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576-77 (D.C. Cir. 2013) (holding that the statement referring to the plaintiff as a “young black man” was direct evidence that entitled the plaintiff to a jury trial); Stone v. Landis Constr. Corp., 442 F. Fed.Appx. 568, 569 (D.C. Cir. 2011) (reversing a district court’s grant of summary judgment for the defendant where the defendant allegedly told the plaintiff “you’re old” which “qualified as direct evidence of [the defendant’s] discriminatory intent.”).

Absent direct evidence of discrimination, a plaintiff may.prove discrimination through circumstantial evidence using the familiar three-part burden-shifting framework of McDonnell Douglas Corp. v. Green (“McDonnell Douglas”), 411 U.S. 792, 793, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which generally applies at summary judgment, see, e.g., id. (applying framework to Title VII claim); Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010) (applying framework to an ADEA claim); Krodel v. Young, 748 F.2d at 705 (same). Under McDonnell. Douglas, the .plaintiff has the initial burden of production to establish a prima, facie case of discrimination; if he does, then the employer must articulate a legitimate, non-discriminatory reason for its action; and if it does, then the plaintiff must receive an opportunity to show .that the. employer’s reason was a pretextual cover for discrimination. McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

At the motion to dismiss stage, however, an employment discrimination plaintiff need not anticipate legitimate, non-discriminatory reasons that may be proffered by the employer for the adverse employment action nor allege pretext to survive a motion to dismiss. See Swierkiewicz, 534 U.S. at 511, 515, 122 S.Ct. 992 (holding that “under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case” and “the Federal Rules do not contain a heightened pleading standard for employment discrimination suits”); see also Twombly, 550 U.S. at 569-70, 586, 127 S.Ct. 1955 (“it should go without saying in the wake of Swier-kiewicz that a heightened production burden at the summary judgment stage does not translate into a heightened pleading burden at the complaint stage”); Jones v. Air Line Pilots Ass’n, Intern, 642 F.3d 1100, 1104 (D.C. Cir. 2011) (noting that in discrimination suit, a “plaintiff is not required to plead every fact necessary to establish a prima facie case to survive a motion to dismiss” (citing Swierkiewicz)); Gordon v. U.S. Capitol Police, 778 F.3d 158, 161-162 (D.C. Cir. 2015) (noting that a plaintiff “need not plead facts showing each of the[ ] elements [for a discrimination claim] in order to defeat a motion under Rule 12(b)(6),” relying on Swierkiewicz, where “the [Supreme] Court rejected such a pleading requirement for discrimination claims,” and, in Twombly, “actually reaffirmed” Swierkiewicz); Brown v. Sessoms, 774 F.3d 1016, 1022-1023 (D.C. Cir. 2014) (“We have been clear, however, that ‘['a]t the motion to dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not plead the elements of a prima facie case.’ ” (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008))).

At the same time, however, when an employment discrimination complaint contains fulsome factual context for the challenged adverse employment action, those allegations must be considered collectively in evaluating the reasonableness and plausibility of the inferences urged by the plaintiff. In such circumstances, the plaintiff may plead himself out of court “by alleging facts that render success on the merits impossible.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C. Cir. 2000); see also Nurriddin, 818 F.3d at 757 (affirming dismissal of Rehabilitation Act claim upon finding that plaintiff essentially “plead[ed] himself out of court” by “directly conceding] that despite [his medical] ‘ condition,” he was able to perform some positions within agency and by providing facts showing the agency “perceived him as being capable of working,” which factual allegations did not support an inference of “a disability .within the meaning of the statute, or [the agency] regarding him as so impaired”). Thus, at the motion-to-dismiss stage, the guiding lodestar is whether, assuming the truth of the factual allegations, taken collectively, whether the inferences of discrimination drawn by the plaintiff are reasonable and plausibly supported. Id. at 756 (noting that court “need not, however ‘accept inferences drawn by [a] plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.’ ” (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

III. DISCUSSION

As noted, the plaintiff was demoted and terminated from the EPA after the EPA and DOJ conducted, by the plaintiffs count, five separate investigations into his role in time-and-attendance fraud at the EPA. FAC ¶¶ 7, 8, 82. Throughout his complaint, the plaintiff makes clear that time-and-attendance fraud was rampant at the EPA. Indeed, the plaintiff, aware of his “own exposure,” made a. number of self-described “whistleblower” disclosures to various entities, including DOJ, “regarding the defective EPA time and attendance system” and the “culture of corruption and myriad malfeasance concerning time and attendance fraud in the EPA Office of Pollution Prevention and Toxics.” Id. ¶¶ 6, 67. Nonetheless, the plaintiff maintains that with respect to him, the five investigations were nothing more than “pretext” for an effort “by EPA upper management ... to remove older employees in favor of a younger, more diverse body of line management.” Id. ¶ 31. The plaintiff claims that his demotion and eventual termination were, in fact, unrelated to his admitted role in time-and-attendance fraud and instead are causally connected to discrimination based on age, sex and race, as well as in retaliation for complaints he made to, among other entities, OCR. Moreover, the plaintiff argues that in the course of conducting these five investigations, the individual defendants violated a number of his constitutional and civil rights.

The defendants’ challenges to these claims are. discussed below, with those against the agency defendants discussed first-before turning to the claims against the individual defendants.

A. CLAIMS AGAINST THE AGENCY DEFENDANTS

The plaintiff brings a variety of claims against the agency defendants separated into following twelve remaining counts: (1) claims, under the ADEA, for disparate treatment age discrimination (Counts I, II, V) and disparate impact age discrimination (Count VIII); (2) claims, under Title VII, for race and sex discrimination (Counts III, IV, VI, and VII); (3) a claim, under both the ADEA and Title VII, for hostile work environment (Count IX); (4) a claim, under Title VII, for retaliation (Count X); (5) a claim under the APA (Count XVII); and (6) a claim for a violation of the Privacy Act (Count XVIII). These- claims- are assessed seriatim below.

1. Age Discrimination: Counts I, II, V, and VIII

In Counts I, II, and V, against the defendant EPA, the plaintiff -claims that his demotion and termination were due to age discrimination, which claims are bolstered by allegations regarding his disparate treatment and statements by EPA officials that he should “step aside” to make room for younger employees. PAC ¶¶ 125-50, 160-63. The sufficiency of each of these claims is analyzed following review of the applicable legal standard.

a. Legal Standard

The ADEA requires that “[a]ll personnel actions affecting [federal] employees ... who are at least 40 years of age ... shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). The ADEA’s “protections for employees of the federal government are, if anything, even more expansive than those for workers employed in the private sector.” Miller v. Clinton, 687 F.3d 1332, 1336-37 (D.C. Cir. 2012). In drafting the federal-sector provision of the ADEA in Section'633a, “Congress deliberately prescribed a distinct statutory scheme applicable only to the .federal sector ..." Lehman v. Nakshian, 453 U.S. 156, 166, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (summarizing the legislative history of the 1974 amendments). Instead of simply applying Section 623, the existing provision for private sector employers, to the federal government, Congress passed Section 633a as a “broad, general ban on ‘discrimination based on age’” that “was patterned ‘directly after’” the federal-sector discrimination ban in Title VII of the Civil Rights Act. Gomez-Perez v. Potter, 553 U.S. 474, 487-88, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008) (quoting Lehman, 453 U.S. at 167 n.15, 101 S.Ct. 2698); see Forman v. Small, 271 F.3d 285, 296 (D.C. Cir. 2001) (“Congress used sweeping language when it ... extended the ADEA to cover federal agency employees.”). Thus, “while a section 623 plaintiff must ... show that the challenged personnel action wias taken because of age,” a section 633a’plaintiff need merely “show that the personnel action involved ‘any discrimination based on age.’” Ford v. Mabus, 629 F.3d at 205. Accordingly, as a federal employee, a plaintiff may establish liability by using direct or circumstantial evidence to show that age was a “factor” in the challenged employment action.

Application of these legal principles to Counts I, II, and V are addressed next.

b. Count I

In' Count !, the plaintiff challenges, as “De Jure” age discrimination, FAC Count I, at 61-63, two adverse employment actions that he claims amounted to disparate treatment on the basis of age, id. ¶ 126: (1) the plaintiffs “constructive demotion” that included “strip[ing] [him] of all management responsibility,” FAC ¶¶94, 126-128; and (2) the plaintiff’s removal from federal service on October 7, 2014, see id. ¶¶ 2, 6, 11, 25-26, 81, 85-86, 96-97, 99,126.

i. The Plaintiff's Constructive Demotion

As support for his claim that his constructive, demotion was based on age discrimination, the plaintiff alleges that Tala Henry, his “putative - supervisor,” “who was slated ... to assume the position vacated by” the plaintiff’s,.former supervisor, “illegally pressured” the plaintiff by telling him to “ ‘step aside’ as branch chief in order to make room for ‘younger’ employees.” Id. ¶¶ 127-128. The plaintiff characterizes this alleged statement, for the purposes of a- motion to dismiss, as “game, set, match.” Id. ¶ 128. Indeed, such a clear statement that the plaintiff must provide room for “younger employees” would ordinarily give rise to a plausible inference of “bias in the employment decision” and thus “qualif[y] as direct evidence of age discrimination.” Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014) (internal quotation marks and citation omitted). In Wilson, the plaintiff alleged that the employer’s Chief Operating Officer told the plaintiff that certain employees were “ ‘here to retire’ rather than to work, and that he had concerns about the older security guards falling asleep on the job.” 753 F.3d at 247. Holding that these two statements constituted “direct evidence of age discrimination,” the D.C. Circuit concluded that a “reasonable factfinder could conclude from those statements that a discriminatory intent motivated the” employment decision at issue as' they “indicated] the sort of ‘inaccurate and stigmatizing stereotypes’ that led Congress to enact the ADEA,” entitling the plaintiff “to proceed to trial.” Id. at 247-48 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)).

Consequently, motions to dismiss are regularly denied in this Circuit where the plaintiff alleges that the employer made a blatant discriminatory statement together with a plausible connection between that statement and an adverse employment decision. See, e.g., Bowe-Connor v. Shinseki, 845 F.Supp.2d 77, 89 (D.D.C. 2012) (denying motion to dismiss ADEA claim where plaintiff alleged that shé had been called “one of the ‘GOLDEN GIRLS’”); Miller v. Gray, 52 F.Supp.3d 62, 67-68 (D.D.C. 2014) (concluding that, at the motion to dismiss stage, employer’s allegéd statement about “seeking a greater balance of older and younger teachers” was sufficient to state a claim for age discrimination).

Yet, the plaintiff “must nevertheless plead sufficient facts to show a plausible entitlement to relief.” Fennell v. AARP, 770 F.Supp.2d 118, 127 (D.D.C. 2011); see Iqbal, 556 U.S. at 677, 129 S.Ct. 1937. The extensive allegations presented in the complaint lays out not only the plaintiffs claims of discrimination but also detailed legitimate, non-discriminatory reasons for the employment decisions made regarding the plaintiff. In this way, the instant complaint makes apparent, at the initial pleading stage, the employer’s proffered reason for the adverse employment action, even though the defendants would otherwise be barred from including “matters outside the pleadings.” Fed. R. Civ. P. 12(d) (stating that if p,'defendant includes materials outside the pleadings, motion "to dismiss must be construed as one for summary judgment). Thus, while employment discrimination plaintiffs can ordinarily survive a motion to dismiss without any discussion of whether the employer may have had a legitimate, non-discriminatory reason for the employment decision at issue, the plaintiff in this cáse provided 'multiple details about the EPA’s proffered rationale for the decision to terminate the plaintiff: namely, that the plaintiff sanctioned and participated in time-and-attendance fraud by subordinates in the agency. See FAC ¶¶ 42-44 (discussing the investigation into the plaintiffs involvement in time-and-attendance misconduct); id. ¶¶ 81-87 (explaining that the “pretextual” reason for the plaintiffs termination was his role in his subordinate’s fraudulent time-and-attendance reporting).

Unsurprisingly, in their motion to dismiss, the agency defendants rely heavily on the plaintiffs admissions that he approved fraudulent time-and-attendance records, misconduct for which the plaintiff acknowledges that the EPA and its head were “deservedly excoriated in the media and before Congress ...FAC ¶81; see, e.g., Agency Defs.’ Mem. Supp. Mot. Dismiss (“Agency Defs.’ MTD”) at 12, ECF No. 38 (explaining that the “time and attendance fraud scheme” was why the plaintiff was “removed”). Thus, in this case, given the plaintiffs admissions that he was involved in time-and-attendance fraud while a supervisor at EPA, the question is whether the inference of discriminatory animus that the plaintiff seeks the Court to draw from the underlying factual allegations are still even plausible. See Nurriddin v. Bolden, 818 F.3d at 757 (dismissing disability discrimination claims since “[u]pon review of the record, we find that [plaintiff] essentially ‘plead[ed] himself out of court by alleging facts that render success on the merits impossible.’ ” (quoting Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (citing Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C. Cir. 2000))).

The Court is cognizant of the “elusive” nature of intentional discrimination, Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089, and that “clever men may easily conceal their motivations,” Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir. 1979) (internal quotation marks omitted). Yet, in making the plausibility determination, the Court is to “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Unlike his termination, the first challenged employment decision — the plaintiffs “demotion” — does not have an express connection to the results of an investigation into any alleged misconduct. Instead, the complaint indicates that the demotion was part of an “office reorganization,” FAC ¶ 127, intended “to reflect a younger, more ‘diverse’ management group,” id. ¶ 90.

The agency defendants argue that “although the circumstances surrounding any constructive demotion are not entirely clear from the allegations in the complaint, given the totality of those allegations, the reasonable inference is that any constructive demotion was a result of Townsend’s admitted participation in wrongdoing, just as was his removal.” Agency Defs.’ Reply Supp. Mot. Dismiss, at 4-5, ECF No. 45. The Court agrees that this is a “reasonable inference.” After all, by the time of the alleged discriminatory statement at issue and of his subsequent constructive demotion, the investigations into the plaintiff by the OIG and the DC-USAO were already well under way. See FAC ¶¶ 40, 42-44 (noting the investigation began on July 3, 2012); id. ¶ 58 (discussing OIG’s “criminal referral” of the plaintiffs case to the DC-USAO); id. ¶ 69 (discussing the April 23, 2013 debriefing held by DOJ). Hence, this timing supports the reasonable inference that the plaintiff was demoted, and his managerial responsibilities removed, because of concerns regarding the plaintiffs supervisory misconduct.

At the motion-to-dismiss stage, however, the question is not whether “the true cause” of the adverse personnel action was a legitimate, non-discriminatory reason, Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015), but, in the face of an allegedly direct discriminatory statement, the focus must be on whether the plaintiff has alleged enough facts to “ ‘state a claim to relief that is plausible on its face,’ ” Nurriddin v. Bolden, 818 F.3d at 756 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). Thus, while the inference may reasonably be drawn that the plaintiffs demotion was because of the ongoing investigations of the plaintiffs involvement in time-and-attendance fraud, “eonstrufing all] reasonable inferences from th[e] allegations in [the] plaintiffs favor,” id. (citing Sissel v. U.S. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014)), the blatant reference to age in the supervisor’s remark makes it at least plausible that age was a “factor” in the plaintiffs demotion and, as he alleges, the reorganization of the Risk Assessment Division was designed “to ‘sweep’ older managers from their positions under the pretext of a so-called ‘staffing plan.’ ” FAC ¶ 91. See Harris v. D.C. Water & Sewer Auth., 791 F.3d at 70-71) (reversing district court’s dismissal of discrimination claims, despite complaint’s allegations of facts relating to medical leave, which may reasonably be “the true cause of his termination” and may “be enough to rebut [plaintiffs] retaliation claim,” because the court’s role at the motion to dismiss stage “is not to speculate about which factual allegations'are.likely to be proved after discovery” and “[t]he only question before us is whether [plaintiff] alleged facts that, taken as true, render his claim of retaliation plausible”).

The agency defendants attempt to deflect the impact of the alleged discriminatory statement by Henry by noting that “[i]t is not clear from the amended complaint whether Henry had actual hiring and firing authority over Townsend, or whether she was responsible for making the decision regarding his removal.” Agency Defs.’ MTD at 8. This effort to focus on the precise supervisory role of the person making the alleged discriminatory statement is not persuasive, however. The D.C. Circuit has expressly cautioned lower courts against discounting discriminatory statements “not made in the direct context” of the challenged employment action. Morris v. McCarthy, 825 F.3d 658, 670 (D.C. Cir. 2016) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152-53, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). To be sure, at the summary judgment stage, the D.C. Circuit has held that a single statement by a person uninvolved in the employment decision is often not enough for a jury to infer discrimination. See, e.g., Hampton v. Vilsack, 685 F.3d 1096, 1101 (D.C. Cir. 2012) (affirming summary judgment for an employer where the adverse employment actions at issue occurred four and five years after a discriminatory remark by someone uninvolved in those decisions); Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 654-55 (D.C. Cir. 2003) (affirming summary judgment for an employer where a plaintiff “allude[d] to a racially degrading e-mail sent out by a single” employee uninvolved in the adverse employment action); Hall v. Giant Food, Inc., 175 F.3d 1074, 1079-80 (D.C. Cir. 1999) (holding that evidence of a discriminatory statement by someone not involved in the adverse employment action is insufficient to defeat a motion for summary judgment).

Yet, the procedural posture of this case is' different since discovery has been limited to administrative proceedings and the claims here -are subject to evaluation under the standard- applicable to a motion to dismiss. The plaintiff has alleged enough facts to push his claim of age discrimination being a factor in his demotion into the realm of plausible because Henry, as the plaintiffs “putative supervisor,” allegedly played some, role in his constructive demotion and allegedly made a direct statement supporting an inference of age discrimination. Specifically, according1 to the FAC, Henry, not only originally asked the plaintiff to “step aside” but then subsequently, as the plaintiff characterizes it, “strong-arm[ed]” the plaintiff into accepting the demotion. FAC ¶ 128. Thus, the plaintiff has sufficiently stated a claim that age discrimination may have been a factor in the decision to demote the plaintiff and strip him of his management responsibilities and then discharge him. Count I, therefore, survives the motion to dismiss as to this part of the claim.

ii. The Plaintiff’s Termination

The plaintiff appears to rely on Henry’s statement to him “to ‘step aside’ as branchchief in order to make room for ‘younger’ employees,” FAC ¶ 93 (emphasis in original), as support for an inference that the plaintiffs removal from federal service was also discriminatory based on his age. See id. ¶126. No plausible inference can.be drawn.from.-this statement, however, that the plaintiffs termination was due to age discrimination for at least two reasons.

First, whereas Henry’s statement was-at least related to the plaintiffs “constructive demotion,” that statement has no plausible causal relationship to the plaintiffs termination. Nowhere in the FAC does the plaintiff even suggest that Henry played a role in the decision to terminate the plaintiff. See generally FAC. To the contrary, the plaintiff, explains that Louise Wise was the “Proposing- Official” for his removal and that Jim Jones was the “Deciding Official,” id. ¶¶ 5, 6; 25-26, 85-86, 97, 152, and that they acted on direction of Administrator McCarthy and her senior deputies, id. ¶88 (“Administrator McCarthy and Perciasepe gave the order to terminate plaintiff’); id. ¶ 99 (“Administrator McCarthy.ordered Jim Jones to formally remove Plaintiff’). Thus, although a plausible inference' can be made that Henry played a role in the plaintiffs demotion, no such inference can be drawn with respect to his termination, which occurred more than a year after Henry asked the plaintiff to “step aside” as branch chief. Id. ¶¶ 93, 99.

Second, unlike the plaintiffs demotion— for which Henry’s statement in combina^ tion with allegations regarding the purpose of the reorganization plan makes a claim of age discrimination at least plausible at this stage of the case — the factual allegations, considered collectively, make abundantly clear that the EPA’s proffered reason for the plaintiffs termination was his supervisory role in time-and-attendance .fraud. Not only does the plaintiff admit that he participated in time-ánd-attendance fraud, see id. ¶¶ 57, 67, the FAC also explains that Monell’s Report of Investigation concluded that the plaintiff was “ ‘guilt[y]’ in a ‘time card fraud’ scheme,” id. ¶ 5, which, the plaintiff explains, resulted in “a recommendation of adverse action against Plaintiff,” id. at 85 ¶152. Further,' although the plaintiff claims these investigations served as “pretext” for his removal, id. ¶ 7,15, 37, he alleges that his termination was driven by a motivation having nothing to do with his age: to “scapegoat” the Plaintiff and “deflect[ ] attention from John Beale.” Id. ¶ 80; see also id. ¶ 62 (“EPA upper management sought political cover (for themselves and their political benefactors) by scapegoating Plaintiff with their (rather convenient) pretextual misfeasance”); ¶ 81 (“Administrator McCarthy was being deservedly excoriated in the media and before Congress for her role in the John Beale debacle — and, upon information and belief, was looking for a sacrificial scapegoat to deflect attention from her own wrongdoing.”); id. ¶ 6 (alleging that Hernandez “was not disciplined despite his full and complete culpability in the wrongdoing for which Plaintiff has been scapegoated”).

Thus, to the extent the plaintiff seeks to rely on Henry’s statement to support an inference that age played a role- in his termination, such an inference is rendered implausible by the totality, of his allegations. The complaint makes no effort to connect Henry or Henry’s statement to his termination. Most importantly, the complaint describes how the EPA concluded that the plaintiff was guilty of time-and-attendance misconduct after exhaustively investigating him for nearly two years. Although the plaintiff laments that the investigations included “fabricated claims” and “false statements,”: the plaintiff admits that he did, in fact, participate in time-and-attendance malfeasance as a supervisor at the EPA.- Finally, although the plaintiff makes the conclusory assertion,that these investigations served as “pretext,” that assertion is undercut by his repeated allegations that the real motivation for his removal was political, not discrimination: to provide “political cover” for McCarthy and EPA upper management by “scapegoating Plaintiff,” e.g. ¶ 81, for what he describes as “the culture of corruption and myriad malfeasance concerning time and attendance fraud,” within the agency, id. ¶81. The plaintiff has effectively pleaded himself out of court “by alleging facts that render success on the merits impossible.” Sparrow v. United Air Lines, Inc., 216 F.3d at 1116; see also Nurriddin, 818 F.3d at 757. Although Henry’s statement may support an inference that age played a role in his demotion, it cannot support a plausible inference that age played a role in his termination. Assuming the truth of the totality of the factual allegations in the complaint, such an inference is not reasonable and plausibly supported. See Nurriddin, 818 F.3d at 757 (court “need not, however ‘accept inferences drawn by [a] plaintiff^] if such inferences are unsupported by the facts set out in the complaint.’ ” (quoting Kowal v. MCI Communications Corp., 16 F.3d at 1276).

• Accordingly, to the extent Count I also claims age discrimination with respect to plaintiffs termination, that portion of the claim is dismissed.

c. Count II

The plaintiff claims in Count II that the EPA had a “De Facto Policy,” FAC Count II at 64, of “targeting] older, more experienced personnel and subject[ing] them to disparate treatment, continuing hostile work environments, intolerable working conditions, and prohibited personnel practices considered constructive adverse actions.” Id. ¶ 137. Although not articulated at such, Count II appears to be a “pattern or practice” disparate treatment claim. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (discussing so-called “pattern or practice” disparate treatment claims); see also Aliotta v. Bair, 614 F.3d 556, 562 (D.C. Cir. 2010) (explaining that “[disparate treatment claims brought under the ADEA may involve ‘an isolated incident of discrimination against a single individual, or ... allegations of a “pattern or practice” of discrimination affecting an entire class of individuals.’ ” (quoting Palmer v. Shultz, 815 F.2d 84, 90 (D.C. Cir. 1987)); Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008) (applying the Teamsters framework to the ADEA). Evidence of a widespread imbalance in protected classes is “often a telltale sign of purposeful discrimination;- absent explanation.” Int’l Bhd. of Teamsters v. United States, 431 U.S. at 339 n.20, 97 S.Ct. 1843. In order to make out a prima facie case of a pattern or practice claim, a plaintiff must “prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts” and instead establish that “discrimination was' the [employer’s] standard operating procedure — the regular rather than the unusual -practice.” Id. at 336, 97 S.Ct. 1843.

The facts as alleged in the complaint do not give rise to a plausible inference of a regular practice of age discrimination at the EPA. Plaintiffs naked assertion that “myriad other older similarly-situated workers subject to the same supervisory chain of command[ ] were treated in the same or highly similar manner” as the plaintiff, FAC ¶ 139, is, without more, conclusory, and cannot support an inference that age discrimination was the EPA’s “standard operating procedure.” Indeed, the plaintiff fails to identify even one other individual whom he alleges was subject to the purported practice of removing older employees. Moreover, the allegedly direct discriminatory statement made by the plaintiffs putative supervisor that the plaintiff should “step aside as branch chief in order to make room for ‘younger’ employees,” FAC ¶ 128 (emphasis in original), was directed at the plaintiff and does not support a broader inference of a pattern of age discrimination.

Accordingly, Count II is dismissed.

d. Count V

In Courít V, the plaintiff asserts another claim of “disparate treatment” based on age, see FAC at 69-70, due to the allegedly less favorable treatment of him as compared to Elizabeth Craig, a “younger female,” id. ¶162, who “fraudulently approved time, performance agreements and awards, attendance and inordinate expenses for John Beale” but “suffered no consequences,” id. ¶ 38 (emphasis omitted). The plaintiff-complains that while he was demoted and ultimately terminated, Craig “was treated with kid gloves and not subjected to the same level of scrutiny,” id. ¶ 162, and promoted “and allowed to retire with a higher pension,” id. ¶ 37.

A plaintiff can establish pretext masking a discriminatory motive by presenting evidence suggesting that the employer treated other employees of a different [protected class] more favorably in the same factual circumstances.” Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015) (internal quotation marks and citation omitted)); see also Brady v. Office of Sergeant at Arms, 520 F.3d at 495 (“Probably the most commonly employed method of demonstrating that an employer’s explanation is pretextual is to show that similarly situated persons of a different race or sex received more favorable treatment.”) (internal quotation marks and citation omitted). To raise an inference of discrimination based on comparator evidence, the plaintiff must demonstrate: (1) that “all of the relevant aspects of [his] employment situation were nearly identical to those of the [other] employee”; and (2) that the comparator was “charged with offenses of comparable seriousness” but treated more favorably. Burley v. Nat’l Passenger Rail Corp., 801 F.3d at 301 (citing Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999)); see also Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1115-16 (D.C. Cir. 2016) (citing Burley, 801 F.3d at 301). “Factors that bear on whether someone is an appropriate comparator include the similarity of the plaintiffs and the putative comparator’s job and job duties, whether they were disciplined by the same supervisor, and, in cases involving discipline, the similarity of their offenses.” Burley, 801 F.3d at 301.

As support for his disparate treatment claim using Craig as a comparator, the plaintiff alleges that “Craig and Plaintiff held similar management jobs requiring them to approve and certify time and attendance.” Id. ¶ 155; see also id. ¶ 62 (“Craig ... approved Beale’s time and attendance, as well as exorbitant travel and awards.”). Nonetheless, even assuming these allegations to be true, other allegations made by the plaintiff demonstrate that they are not similarly situated and, consequently, any difference in treatment between Craig and the plaintiff cannot give rise to a plausible inference of discrimination.

At the outset, notably, the plaintiff does not plead Craig’s age. Thus,.no inference can be drawn that Craig was “significantly younger” than the plaintiff, undercutting any inference that age was a factor for any alleged disparate treatment between Craig and the plaintiff. See, e.g., O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (stating that an inference of age discrimination “cannot be drawn from the replacement of one worker with another worker insignificantly younger”).

More significantly, however, even if Craig were assumed to be “significantly younger,” the plaintiff admits that Beale, whom Craig supervised, misled her “into believing he was on assignment for the Intelligence Community.” FAC ¶ 61; see Agency Defs.’ MTD at 10. By contrast to Craig’s situation, the plaintiff admits that he approved time-and-attendance records that he knew were fraudulent in at least three of his branch chief assignments at the EPA. FAC ¶ 57. He discusses the fact that two “consecutive Division Directors,” id. at ¶ 68, one of whom the plaintiff describes as “fraudulent and corrupt,” id. ¶ 6, “instructed Plaintiff that EPA practice was to ‘not waste time’ assigning work to low performing employees, but to sign time cards indicating such employees were available to work,” id. ¶ 68. Yet, during his entire supervisory career at the EPA, the plaintiff apparently never questioned this practice until he was already under investigation by both the EPA and DOJ. See id. ¶ 67. Notwithstanding this significant difference between the plaintiffs admitted complicity in time-and-attendance fraud within EPA compared to Craig being deceived by a subordinate’s fraudulent actions, both the plaintiff and Craig were treated identically when both their cases were “examined in the context of the same Inspector General investigation,” id. ¶ 162, and referred to DOJ for a criminal investigation, id. ¶37. Like the plaintiff, Craig was ultimately not charged with any criminal wrongdoing, but they were both subject to similar external scrutiny.

In sum, the plaintiff has, not shown facts giving rise to plausible inferences (1) that he and Craig are significantly different in age; (2) that he was treated less favorably than Craig for reason of his age; or (3) that they were charged with offenses of “comparable seriousness”. Instead, the plaintiff makes clear that whereas Craig was misled by her subordinate, he knowingly facilitated fraudulent time-and-attendance reporting at the EPA. In other words, the plaintiff has been “hoist[ed] with his own petard.” William Shakespeare, Hamlet 183 (Folger Library ed., 2003). Given the inculpatory evidence about the plaintiffs behavior in the FAC, any difference in treatment between Craig and the plaintiff simply does not give rise to a conceivable, let alone plausible, inference that the EPA’s “asserted non-discriminatory reason was not the actual' reason and that the employer intentionally discriminated against” the plaintiff when it terminated his employment. Brady v. Office of Sergeant at Arms, 520 F.3d at 494. Accordingly, Count V is dismissed.

e. Count VIII

In Count VIII for disparate impact, the plaintiff alleges that “Cleland-Hamnett and Henry put in place an employment practice approved by Defendant Jones of promoting younger, more diverse management candidates.” FAC ¶171. Although the plaintiff does not make an express reference to the “office reorganization” that formed the basis for his claim in Count I, the plaintiff appears to argue that this reorganization could be construed as a facially neutral policy that had a “disparate impact” “of discriminating against older, more experienced employees ....” Id. Indeed, “[plaintiffs alleging age discrimination in violation of the ADEA may seek recovery under both disparate treatment and disparate impact theories of recovery.” Aliotta v. Bair, 614 F.3d at 561 (D.C. Cir. 2010) (citing Smith v. City of Jackson, Miss., 544 U.S. 228, 236-40, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005)). Nonetheless, unless the plaintiff alleges a “facially neutral employment policy[,] ... his claim sounds only in terms of disparate treatment.” Schuler v. PricewaterhouseCoopers, LLP, 421 Fed. Fed.Appx. 1, 2 (D.C. Cir. 201