2012 U.S. Dist. LEXIS 137508
E.D.N.Y.2012Background
- Plaintiff David Corbett, Jr. is African American/Native American veteran alleging Title VII race discrimination and retaliation.
- He worked as an INS immigration inspector (1998-2002) with excellent performance ratings and a Secret clearance; later alleged disparities in security clearance processing.
- In 2002 he transferred to FAMS; received a probationary, non-supervisory position with no permanent status, unlike others who received veteran’s preference.
- Plaintiff alleges a racially hostile environment at FAMS New York, with white air marshals facing fewer actions for similar conduct; he was terminated from FAMS probation in August 2003 for tardiness and a security breach related to a Dallas incident.
- In 2007 he joined CBP and underwent a background investigation; CBP considered derogatory information and he was terminated December 17, 2007 for failing to meet background check standards; CBP’s action followed a May 2007–October 2007 process.
- Plaintiff filed EEOC complaint January 31, 2008 alleging race discrimination and retaliation; EEOC decision dismissed the complaint; MSPB challenged FAMS termination on due process grounds but did not claim discrimination/retaliation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of retaliation claim against FAMS | Exhausted by checking retaliation box and citing FAMS conduct. | Exhaustion failed because EEOC complaint referenced CBP action and allegedly not protected activity at FAMS. | Exhaustion satisfied; EEOC complaint and attachments put DHS/EEOC on notice of FAMS retaliation. |
| Rule 12(b)(6) dismissal of FAMS retaliation claim | Plaintiff pleaded plausible retaliation via disparate treatment and circumstantial evidence. | Insufficient causation and adverse action linking FAMS to retaliation; failure to plead direct evidence. | Denied; complaint states plausible retaliation claim against FAMS under Title VII. |
| Subject matter jurisdiction over CBP termination—national security issue | CBP termination tied to background check, not a security clearance denial; court has jurisdiction. | CBP decision implicated national security/clearance review and may be unreviewable. | Denied; no evidence CBP based termination on national security determination; jurisdiction exists. |
| Motion to amend to add Bivens claims | Brown v. General Services, Title VII not exclusive; Bivens available if Title VII unavailable. | Title VII provides exclusive remedy; Bivens futile if Title VII governs. | Denied; Title VII provides remedy for CBP termination; amendment futile. |
Key Cases Cited
- Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (U.S. 2002) (pleading standards require only a short and plain claim showing entitlement to relief)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (S. Ct. 2007) (establishes plausibility standard for Rule 12(b)(6))
- Novak v. Patane, 508 F.3d 106 (2d Cir. 2007) (retaliation claims pleading—prima facie case not required at pleading stage)
- Gorman-Bakos v. Cornell Co-op. Ext. of Schenectady, 252 F.3d 545 (2d Cir. 2001) (causal connection can be shown by temporal proximity or circumstantial evidence)
- Thompson v. North Am. Stainless, LP, 131 S. Ct. 863 (2011) (adverse action causation in retaliation claims under Title VII)