Corbett v. NapolitanoCorbett v. Napolitano
MEMORANDUM & ORDER
Plaintiff David Corbett, Jr. (“plaintiff’) brings this action alleging employment discrimination based on race and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. 'Specifically, plaintiff claims that he was discriminated and retaliated against when his employment with the U.S. Customs and Border Patrol
Defendant has several motions before the court. First, defendant moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on the limited issue of whether plaintiff exhausted his retaliation claim against his former supervisors at FAMS. Second, defendant moves to dismiss plaintiffs retaliation claim involving FAMS for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Third, defendant moves to dismiss plaintiffs retaliation and discrimination claims involving CBP for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Finally, plaintiff moves to amend his complaint for a fourth time to add claims against individual defendants for violations of his right to equal protection of the law under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
BACKGROUND
I. Statement of Facts
The following facts are taken from plaintiffs Third Amended Complaint and are assumed to be true for the purposes of defendant’s Rule 12(b)(6) motion to dismiss.
A. Plaintiffs Employment at the Immigration and Naturalization Service
Plaintiff, an African American and Native American military veteran, was employed as an immigration inspector with the Immigration and Naturalization Service (“INS”), then a part of the Department of Justice, from April 1998 to April 2002. (ECF No. 43, Third Amended Complaint (“Compl.”) ¶¶ 7, 11 & n. 1.) As a condition of his employment with INS, plaintiff successfully underwent a sensitive security background investigation and received a “Secret” level security clearance. (Id. ¶ 12.) During his employment at INS, plaintiff received annual performance ratings of either “Excellent” or “Outstanding,” the highest possible ratings. (Id. ¶ 13.)
B. Plaintiffs Employment at the Federal Air Marshal Service (“FAMS”)
In early 2002, plaintiff was granted a transfer to the New York Field Office of FAMS. (Id. ¶¶ 14, 17.) Due to plaintiffs experience in the military and with INS, plaintiff qualified for a non-probationary, permanent career status position at FAMS with veteran’s preference status. (Id. ¶ 14.) Additionally, plaintiff qualified for a supervisory position at FAMS based on his experience and testing scores. (Id.) After plaintiff resigned from INS, however, FAMS informed him that he would only be
In April 2002, Plaintiff began his employment at FAMS, where he was required to complete a twelve-month probationary period after receiving a “Top Secret” security clearance. (Id. ¶¶ 15, 17.) Although he completed a timely application for a “Top Secret” security clearance, plaintiffs application remained pending during the entire course of his employment at FAMS, while FAMS granted security clearances to white air marshals in a timely manner. (Id. ¶¶ 16, 21.) Additionally, the United States Office of Personnel Management completed its background check in connection with plaintiffs security clearance application and sent the results to FAMS on or about May 22, 2003, but plaintiff was never notified of the results of the investigation. (Id. ¶ 35.)
Under FAMS policy, air marshals were required to arrive at the airport two hours before their scheduled flight. (Id. ¶ 22.) Plaintiff, however, asserts that the policy was loosely enforced at the FAMS New York Field Office, and that air marshals regularly arrived late without repercussions. (Id.) Plaintiff also maintains that the atmosphere at the FAMS New York Field Office was “permeated by racial hostility.” (Id. ¶ 18.) Specifically, he asserts that white air marshals were regularly late for flights, missed flights, had altercations with airline staff, and drank alcoholic beverages on duty, all in breach of FAMS policy, but did not receive adverse employment actions as a result of their conduct. (Id. ¶¶ 18, 23.)
On April 3, 2003, plaintiff carried his fiancée’s luggage with him through a security checkpoint at the Dallas/Forth Worth Airport (the “Dallas Incident”), which was an alleged breach of airport security procedures. (Id. ¶ 27.)
On May 12, 2003, plaintiff met with (1) Ira Shinske (“Shinske”), Assistant Special Agent in Charge of the New York Field Office and plaintiffs immediate supervisor, (2) Geraldo Spero (“Spero”), Deputy Special Agent in Charge of the New York Field Office, and (3) Felix Jiminez (“Jiminez”), Special Agent in Charge of the New York Field Office. (Id. ¶¶24, 29-30.) The Special Agents informed plaintiff that he was being investigated by the Transportation Security Administration (“TSA”) Office of Internal Affairs and Program Review (“OIAPR”) because of the Dallas Incident. (Id. ¶ 30.) At the same meeting, plaintiff complained that he was being singled out for unduly harsh treatment because of his race and that white air marshals were not being punished for arriving late for work or for security breaches. (Id. ¶ 31) According to plaintiff, Spero replied that plaintiff had “no future” with the FAMS and that he should resign before he “ruin[ed] [his] federal career.” (Id.) When plaintiff refused to resign, Spero allegedly told plaintiff that he would be fired and that a termination letter would arrive from FAMS headquarters “any day now.” (Id.) Plaintiff was subsequently interviewed by the OIAPR regarding the Dallas Incident. (Id. ¶ 32.)
On May 22, 2003, at plaintiffs request, plaintiff met with Jiminez and Spero to discuss the May 12, 2003 meeting. (Id. ¶ 34.) Jiminez reiterated that plaintiff would be fired and allegedly refused to listen to plaintiffs explanation of the Dallas Incident or read an affidavit plaintiff had provided to OIAPR. (Id.) Although Jiminez told plaintiff he would have the
Between May 22, 2003 and August 14, 2003, no one at FAMS discussed any alleged performance issues with plaintiff, and plaintiff began to receive less desirable assignments after the May 12, 2003 meeting. (Id. ¶¶ 37-38.) On August 14, 2003, plaintiff was terminated from probationary employment with FAMS. (Id. ¶¶ 39-40.) Plaintiffs termination letter from Spero and Jiminez explained that he was fired due to tardiness, failing to report tardiness on his attendance records, and for the alleged breach of security in connection with the Dallas Incident. (Id. ¶ 39.)
C. Plaintiffs Employment at the U.S. Customs and Border Protection (“CBP”)
In May 2007, plaintiff accepted a position as an officer with CBP, contingent on his clearing a background investigation and receiving a “Top Secret” security clearance. (Id. ¶ 41.)
As part of the background investigation, the CBP investigator interviewed Jiminez and Shinske, who both stated that they “would not recommend [plaintiff] for a position of trust with the federal government.” (Id. ¶¶ 46-47.) Jiminez also told the CBP investigator that he authorized plaintiffs termination from FAMS after reviewing the results of an investigation into plaintiffs “work habits and behavior” (id. ¶ 46), and Shinske told the investigator that plaintiff was repeatedly late for work and that he was involved in a security violation with his ex-fiancé, presumably a reference to the Dallas Incident (id. ¶ 47).
On October 4, 2007, plaintiff received a Notice of Proposed Action (“NOPA”) finding him “unsuitable for employment” with the CBP because his background investigation revealed “potentially derogatory information” concerning “Dishonest Conduct/Misconduct or Negligence in Employment.” (Id. ¶ 42; ECF No. 60-2, NOPA (submitted by plaintiff) at 1.) The NOPA also mentioned that information from the background investigation “may be furnished to designated officers and employees of agencies and departments of the Federal Government for employment purposes, to include a security clearance determination.” (NOPA at 2-3.)
Moreover, the NOPA contained the findings of plaintiffs background investigation, which revealed that although plaintiff claimed he had only been terminated by one employer (FAMS), he had previously been terminated from positions at the U.S. Postal Service and Social Security Administration and asked to resign from a position at Monroe College. (Id. at 1-2.) Further, the background investigation revealed that sources from FAMS stated that plaintiff was terminated from FAMS “after conducting an investigation on [his] work habits and behavior that involved a security violation and tardiness,” specifically that plaintiff was tardy twenty-two times in a fourteen-month period. (Id. at 2.) Finally, the investigation revealed that plaintiff was disqualified for a Good Conduct Medal during his military service because of “unfavorable actions” and eighteen unexcused absences from training. (Id.) The NOPA informed plaintiff that he could respond to the issues raised by his background investigation, and plaintiff alleges that he submitted a timely response. (Id. at 1; Compl. ¶ 43.)
On October 17, 2007, the CBP background investigator recommended that plaintiff be granted a “Top Secret” security clearance, with a formal warning letter in his file. (Compl. ¶ 48.) On October 22, 2007, CBP officials recommended that plaintiff be denied a security clearance,
On December 17, 2007, plaintiff received a termination letter from Susan Mitchell, the New York Operations Director for CBP. (Id. ¶ 11.) The termination letter stated:
You were appointed to the position of CBP Officer with the understanding that you would be required to satisfactorily complete your background investigation. Your background investigation has revealed significant derogatory information. Subsequently, it has been determined that you have failed to meet the standards required to clear your background investigation. Therefore, I have no choice but to terminate your employment with CBP due to your failure to meet a condition of employment.”
(See ECF No. 60-3, Letter from Susan Mitchell dated December 13, 2007 (“Mitchell Termination Letter”).) Subsequently, at a December 21, 2007 meeting, Mitchell told plaintiff that “she would have no problem with Corbett’s continued employment with CBP if he had he passed his background check.”
D. Plaintiffs Merit Systems Protection Board and Equal Employment Opportunity Commission Complaints
Shortly after leaving FAMS, plaintiff challenged his FAMS termination through the Merit Systems Protection Board (“MSPB”) on due process and procedural grounds. (ECF No. 57, Defendant’s Statement of Undisputed Material Facts Pursuant to Local Civil R. 56.1 (“Def. 56.1 Stmt.”) ¶ 8.) In the MSPB challenge, plaintiff did not allege that discrimination or retaliation played a role in his termination from FAMS.
On January 31, 2008, after his termination from CBP, plaintiff filed a formal complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging that he was terminated from employment with CBP as the result of race and color discrimination and retaliation (the “EEOC Complaint”). (Def. 56.1 Stmt. ¶¶ 16-17; see ECF No. 60-1, EEOC Complaint (“EEOC Compl.”) at 1-2.) Specifically, plaintiff checked boxes on the EEOC Complaint labeled “race,” “color,” and “retaliation” to indicate the bases of his discrimination. (EEOC Compl. at 2.)
In the EEOC Complaint, plaintiff identified “U.S. CBP Personnel Security Division” as the “DHS component who took the action at issue.” (Id.) Plaintiff also stated in the EEOC Complaint that the retaliation against him occurred on or after August 13, 2003, the approximate date of his termination from FAMS and several years before the beginning of his employment with CBP. (Id.; PL 56.1 Stmt. ¶29.)
[TJhere was discrimination based on race and color that I experienced with the Federal Air Marshal Service involving circumstances dealing with my termination from them, which seems to have been used against me to warrant justification in the termination of employment with CBP.
[...]
I am being discriminated against based on what were unfair and questionable actions taken against me while employed as a Federal Air Marshal, as well as unsubstantiated allegations, misunderstandings, and hearsay raised about my previous employment.
(EEOC Compl., Attachment A at 2.)
During the administrative proceedings regarding the EEOC Complaint, plaintiff stated that he did not recall if he ever complained about discriminatory treatment based on race while at FAMS, nor did plaintiff specifically allege in the EEOC proceeding that he complained about disparate treatment or discrimination during a meeting with FAMS supervisors. (Def. 56.1 Stmt. ¶¶ 21-22 (citing ECF No. 60-M, Transcript of David Corbett Deposition dated Sept. 16, 2008 (“Corbett Dep. Tr.”) at 88).)
In an investigative summary, a DHS official noted that during the EEOC investigation, plaintiff “contended] he was subjected to the adverse findings in his background investigation because of his previous termination from the U.S. Federal Air Marshals Service, which discriminated against him based on his race and color.” (Id. ¶ 31 (quoting ECF No. 60-5, Investigative Summary at 4).) An Administrative Law Judge dismissed the EEOC Complaint on October 30, 2008 (Def. 56.1 Stmt. ¶ 24; see ECF No. 56, Seth D. Eichenholtz Declaration (“Eichenholtz Decl”), Ex. D (the “EEOC Decision”) at 7), and the decision was affirmed on appeal on December 10, 2009 (see Eichenholtz Decl., Ex. F (the “EEOC Appeal Decision”) at 1).
E. The Instant Action
Plaintiff filed his original pro se complaint in the present action on August 23, 2010 (see ECF No. 1, Original Complaint), his pro se First Amended Complaint on December 20, 2010 (see ECF No. 33, First Amended Complaint), and his pro se Second Amended complaint on March 1, 2011 (see ECF No. 37, Second Amended Complaint). After plaintiff obtained counsel to represent him in this action, plaintiff filed the Third Amended Complaint on May 23, 2011.
On November 28, 2011, defendant filed the instant motions and an opposition to plaintiffs motion to amend (see ECF No. 61, Memorandum of Law in Support of Defendant’s Motion to Dismiss the Third Amended Complaint and in Opposition to Plaintiffs Motion to Amend His Complaint (“Def. Mem.”)), plaintiff filed his motion to amend and an opposition to defendant’s motions (see ECF No. 62, Memorandum of Law in Support of Plaintiffs Motion to Amend the Complaint and in Opposition to Defendant’s Motion to Dismiss the Complaint (“PL Opp’n”)), and the defendant filed a reply brief (see ECF No. 63, Reply Memorandum of Law in Further Support of Defendant’s Motion to Dismiss the Third Amended Complaint (“Def. Reply”)).
DISCUSSION
II. Defendant’s Summary Judgment Motion on the Issue of Exhaustion of Plaintiffs Retaliation Claim against FAMS
Defendant moves for summary judgment on the limited issue of whether plaintiff exhausted his claim of retaliation by former supervisors at FAMS. Defendant argues that, in plaintiffs January 2008 EEOC Complaint, plaintiff failed to exhaust his retaliation claim alleging that FAMS officials provided negative references to CBP in retaliation for plaintiffs May 2003 informal complaint of discrimination. (Def. Mem. at 18.) Specifically, defendant asserts that plaintiff did not allege in the EEOC Complaint that FAMS officials took retaliatory action because (1) plaintiff only listed “U.S. CBP Personnel Security Division” as the “DHS component who took the action at issue” (Def. Mem. at 18; see EEOC Compl. at 2), and (2) plaintiff did not allege that he engaged in any protected activity while at FAMS in the EEOC Complaint (Def. Mem. at 19).
Plaintiff maintains that he exhausted his retaliation claim and put the EEOC and the DHS on notice of his claims involving FAMS officials’ retaliatory acts when he
A. Legal Standard for Summary Judgment
A court may grant summary judgment only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,
The moving party carries the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
B. Legal Standard for Exhaustion
It is well-settled that prior to bringing suit under Title VII, “a federal government employee must timely ‘exhaust the administrative remedies at his disposal.’” Belgrave v. Pena,
Claims not raised in an EEOC complaint, however, may still be brought in federal court if they are “reasonably related” to the claims asserted in the EEOC complaint. Mathirampuzha v. Potter,
“This ‘reasonably related’ exception to exhaustion is essentially an allowance of loose pleading and is based on the recognition that EEOC charges frequently are filled out by employees without the benefit
With respect to retaliation claims, courts in this Circuit have found that even if a plaintiff did not allege that he engaged in a specific type of protected activity in his EEOC complaint, a retaliation claim is still exhausted if the plaintiff checked the retaliation box and described the retaliatory action taken against him in his EEOC complaint. See Wilson v. N.Y.C. Police Dep’t, No. 09 Civ. 2632,
Additionally, a claim is deemed “reasonably related” to an EEOC complaint if the claim fell within the actual scope of the EEOC investigation arising from the complaint, as indicated in the EEOC decision. Dixit v. N.Y.C. Dept. of Gen. Serv.,
C. The Sufficiency of Plaintiffs Exhaustion of Administrative Remedies
Here, although plaintiff listed CBP as the “DHS component who took the action at issue” (EEOC Compl. at 2), the EEOC Complaint alleged enough facts regarding his retaliation claim involving FAMS supervisors’ negative references for the claim to “fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Mathirampuzha,
Additionally, in his declaration submitted in support of his complaint of discrimination to the EEOC, plaintiff stated that the CBP officials involved in his termination decision “seemed to take into consideration unsubstantiated allegations, unconfirmed reports, and derogatory opinions given by people still employed with the [FAMS].” (EEOC Decl. at 13.) Indeed, plaintiff specifically referred in his declaration to “derogatory information” given to CBP by Mr. Jimenez and and Mr. Shinske of the FAMS (id. at 4), the same two individuals to whom plaintiff complained of racial discrimination in May 2003 while at the FAMS (Compl. ¶ 31). An investigation into the “derogatory opinions” regarding plaintiff given by FAMS officials to CBP and the “circumstances dealing with [plaintiffs] termination” from FAMS, which constitute plaintiffs retaliation claim against FAMS, could reasonably be expected to fall within the scope of the EEOC investigation based on the allegations in the EEOC Complaint. Indeed, the DHS official investigating plaintiffs EEOC claim noted that plaintiff asserted that he “was subjected to the adverse findings in his [CBP] background investigation because of his previous termination from [FAMS], which discriminated against him based on his race and color.” (PI. 56.1 Stmt. ¶ 31 (quoting Investigative Summary at 4).)
Third, although plaintiff did not allege he engaged in any protected activity in his EEOC complaint or succeed in showing he engaged in protected activity in the EEOC proceeding (see EEOC Decision at 7), such failures do not necessarily preclude a finding of exhaustion. See Wilson,
Finally, the EEOC Decision dismissing plaintiffs complaint specifically discussed plaintiffs claims of retaliation and summarized the results of the investigation into plaintiffs potential protected activity during and before his employment at CBP and at his previous employers, including FAMS. (See EEOC Decision at 7.) The court thus finds that the scope of the EEOC investigation arising from plaintiffs allegations in the EEOC Complaint encompasses his prior protected activity at FAMS and any retaliatory acts arising therefrom. See Dixit,
Unlike cases “where the failure to check the box marked ‘retaliation’ in one’s EEOC charge was accompanied by a ‘failure to even hint that retaliatory treatment was involved,’ ” Reyes v. City College of the City Univ. of N.Y., No. 03 CIV. 3132,
III. Defendant’s Motion to Dismiss Plaintiffs Retaliation Claim Against FAMS for Failure to State a Claim
Defendant moves to dismiss plaintiffs retaliation claim involving FAMS for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
A. Legal Standard for Rule 12(b)(6) Motion to Dismiss
Rule 12(b)(6) provides for the dismissal of a cause of action if plaintiffs complaint fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
The plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679,
A well-pleaded complaint may survive a motion to dismiss even where “it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly,
In conducting such an assessment on a Rule 12(b)(6) motion to dismiss, courts must “ ‘accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.’ ” Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co.,
B. Legal Standard for Retaliation
In order to establish a prima facie retaliation claim under Title VII, an employee must show “(1) she was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiffs participation in the protected activity; (3) the employer took adverse action against plaintiff; and (4) a causal connection existed between the plaintiffs protected activity and the adverse action taken by the employer.” Gordon v. New York City Bd. of Educ.,
In order to survive a Rule 12(b)(6) motion, a plaintiff need not plead facts “sufficient to make a prima facie ease” of retaliation or satisfy the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
C. Whether Plaintiff States a Retaliation Claim Against FAMS
Defendant argues that plaintiffs retaliation claim regarding FAMS officials’ submission of negative references to CBP should be dismissed because (1) plaintiff has not alleged sufficient facts to establish a materially adverse employment action (Def. Mem. at 16-17), and (2) plaintiff has not alleged sufficient facts to establish a causal connection between plaintiffs informal complaint of discrimination and the negative references, which is the alleged act of retaliation (Def. Reply at 8). Both
1. Materially Adverse Employment Action
The submission of negative references regarding plaintiff to background investigators at CBP qualifies as adverse employment actions. In order to constitute an adverse employment action, an employer’s act must rise to the threshold where it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Thompson v. N. Am. Stainless, LP,—U.S.-,
Under Second Circuit precedent, a former employer’s refusal to give positive references or circulation of negative references to a plaintiffs potential future employer qualify as adverse employment actions disadvantaging the plaintiff. See Jute, 420 F.3d at 178-79 (recognizing that a former’s employer’s negative job reference containing a false statement may constitute an adverse employment action because it may negatively affect an employee’s chances of securing employment, and finding that the district court erred by requiring plaintiff to prove that the potential future employer attributed its non-hire decision to the negative reference); Pantchenko v. C.B. Dolge Company, Inc.,
Additionally, a plaintiff need not be employed by the defendant at the time of the alleged adverse employment action, as long as the adverse employment action was “related to or arising out of’ an employment relationship. Pantchenko,
In his complaint, plaintiff alleged that (1) Jiminez, plaintiffs former supervisor at FAMS, told a CBP background investiga
2. Causal Connection Between Protected Activity and Retaliation
The court next considers whether plaintiff has alleged sufficient facts to establish a plausible causal connection between his alleged protected activity and the negative references given by his FAMS supervisors. Defendant argues that plaintiffs claim must be dismissed because (1) plaintiff has failed to allege direct evidence of retaliatory animus; and (2) the three-year gap between the alleged retaliatory act and the protected activity on which it is predicated is too lengthy to establish an indirect inference of retaliation. (Def. Reply at 9-10.)
The causal connection between a plaintiffs protected activity and his employers can be shown either “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by defendant.” Raniola v. Bratton,
For the purposes of establishing a causal connection through temporal proximity between the protected act and the retaliation, the Second Circuit “has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship.” Gorman-Bakos v. Cornell Co-op. Extension of Schenectady,
At the motion to dismiss stage, some courts have declined to dismiss retaliation claims merely because the plaintiff does not allege direct evidence of a causal connection and the period between plaintiffs alleged protected activity and defendant’s adverse action is more than three months long. This is particularly true where plaintiffs have alleged additional facts that suggest a plausible scenario of a causal connection or explain why the time lapse is so lengthy. See, e.g., Batyreva v. New York City Dept. of Educ., No. 07 Civ. 4544,
Furthermore, even if the period between a plaintiffs alleged protected activity and defendant’s alleged adverse employment action is longer than a few months, a plaintiff may still establish causation through “circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct.” Raniola,
Here, as in Quinones and Batyreva, plaintiff alleges sufficient facts plausibly to infer a causal connection between his informal complaints of racial discrimination and the negative references circulated by FAMS officials, despite the three-year period between his alleged protected activity and the retaliatory adverse action. Specifically, plaintiffs complaint alleges a causal connection through circumstantial evidence of disparate treatment by asserting that white air marshals did not receive negative references or otherwise face adverse employment actions for engaging in the same tardiness and security violations in which plaintiff was involved. {See Compl. ¶ 23 (“[W]hite air marshals in the New York Field Office were regularly late for flights ... and were involved in other breaches of FAMS policy .... [T]hose white air marshals did not face adverse
Additionally, plaintiff asserts that white air marshals were given veteran’s preference and non-probationary positions for their military service and had their security clearances processed in a timely manner, while plaintiff, who was a veteran, was only hired on a probationary status and plaintiffs security clearance remained pending throughout his employment at FAMS. (Compl. ¶¶ 20-21.) Finally, plaintiff alleges that, shortly after he informally complained of racial discrimination to his supervisors at FAMS, (1) two of his supervisors told plaintiff that he had “no future” at FAMS and that he would be fired if he did not resign (id. ¶¶ 31, 34); (2) he began to receive less desirable assignments (id. ¶ 38), and (3) he was terminated from FAMS (id. ¶ 39). These allegations regarding disparate treatment and other retaliatory conduct by plaintiffs FAMS supervisors provide circumstantial evidence of a causal connection between plaintiffs protected activity and the negative references, thus making it plausible that plaintiffs FAMS supervisors discriminated and/or retaliated against him three years later when the opportunity arose again via CBP’s request for references in connection with its background investigation of plaintiff.
Accordingly, considering (1) that the Second Circuit “has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship,” Gorman-Bakos,
IV. Defendant’s Motion to Dismiss Plaintiffs Discrimination and Retaliation Claims against CBP for Lack of Subject Matter Jurisdiction.
Defendant argues that plaintiffs claim that CBP officials discriminated and retaliated against him by terminating him from CBP must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) because the court lacks subject matter jurisdiction to review national security clearance determinations. (Def. Mem. at 12.) Specifically, defendant asserts that the court lacks subject matter jurisdiction to review CBP’s decision to terminate plaintiff because it was based, at least in part, on plaintiffs inability to receive a “Top Secret” security clearance. (Id. at 14-15.) Plaintiff argues in opposition that the
A. Legal Standard for Rule 12(b)(1) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(1) allows a district court to dismiss a case for lack of subject matter jurisdiction if the court “lacks the statutory or constitutional power to adjudicate [the case].” Aurecchione v. Schoolman Tramp. Sys., Inc.,
B. Federal Court Subject Matter Jurisdiction Over Security Clearance Determinations
In Department of Navy v. Egan,
Other circuits and district courts in this circuit, however, have construed Egan to preclude any “nonexpert body,” including federal courts, from reviewing under Title VII an executive agency’s decision to deny an individual a security clearance. See, e.g., Ryan v. Reno,
In contrast, at least one court outside this Circuit has found that if a plaintiffs employment termination was due to an adverse suitability determination made after a background investigation, as distinct from a security clearance denial, federal courts may exercise subject matter jurisdiction over the plaintiffs Title VII employment discrimination claims. In Jones v. Ashcroft,
In Bennett v. Chertoff,
C. Whether Plaintiffs Termination by CBP Was Based on a National Security Determination
Here, there is no evidence in the record that the CBP considered national security or plaintiffs ability to obtain a security clearance as a basis for plaintiffs termination. According to plaintiffs decía
Furthermore, the October 4, 2007 NOPA only informed plaintiff that he was being found “unsuitable for employment ... based on potentially derogatory information developed during [his] background investigation,” including his failure to disclose his termination from two previous employers and his resignation from another previous employer, his tardiness and the security violation at the FAMS, and his unexcused absences during military service. (NOPA at 1-2.) Although the NOPA stated that the information from plaintiffs background investigation “may be furnished” to government officers “for employment purposes, to include a security clearance determination, [and] an evaluation of qualifications, suitability, and loyalty to the U.S. government” (id. at 2-3), there is no indication in the NOPA that the CBP ever proceeded to make a security clearance determination after making the adverse background determination. Similarly, plaintiffs December 17, 2007 termination letter from Mitchell merely stated that plaintiff “failed to meet the standards required to clear [his] background investigation,” and did not mention any concerns regarding national security. (Mitchell Termination Letter.)
Defendant points to plaintiffs allegation in the Third Amended Complaint that the background investigation was “conducted to determine [his] eligibility for a ‘Top Secret’ security clearance” as evidence that plaintiffs termination was based on a national security determination. (Def. Reply at 6 (citing Compl. ¶ 45).) While that may be the case, plaintiffs allegation is consistent with his argument that a background check is distinct from a security clearance determination. Indeed, plaintiffs complaint alludes to this distinction when he alleges that Mitchell told him that “she would have no problem with Corbett’s continued employment with CBP if he had passed his background check.” (Compl. ¶ 52.) Additionally, defendant cites plaintiffs allegation that CBP officials “recommended that [he] be denied a security clearance” as proof that he was terminated because of his inability to obtain a security clearance. (Def. Reply at 6 (citing Compl. ¶ 49).) Regardless of that recommendation, however, plaintiffs complaint clearly alleges that his termination was due to the fact that he “failed his background check” (Compl. ¶ 51), and not due to the recommendation that he be denied a security clearance. In any event, plaintiffs own allegations would not control the court’s determination of subject matter jurisdiction, and the plaintiff should at least be able to take discovery on this issue.
Finally, defendant incorrectly relies on Bennett. In Bennett, the record contained a sworn statement from a TSA official stating that plaintiffs termination was “due to her inability to sustain a security clearance.”
V. Plaintiffs Motion to Amend His Complaint
In the proposed Fourth Amended Complaint, plaintiff seeks to add defendants Felix Jimenez and Ira Shinske of FAMS and Susan Mitchell of CBP in their individual capacities, alleging that they intentionally violated plaintiffs Fifth Amendment rights by discriminating against him on the basis of his race in the terms and conditions of his employment and by retaliating against him for protected complaints of discrimination. (See ECF No. 59-1, Proposed Fourth Amended Complaint (“Proposed 4th Compl.”).) Defendant argues in opposition that the motion to amend should be denied because (1) Title VII provides the exclusive remedy for employment discrimination claims, and thus the proposed amendment to add discrimination claims pursuant to Bivens is futile, and (2) plaintiffs Bivens claims are time-barred. (Def. Mem. at 21-22.) These arguments will be addressed in turn.
A. Legal Standard for a Motion to Amend the Complaint
Under the Federal Rules of Civil Procedure, a court should “freely give leave [to amend the pleadings] when justice so requires.” Fed.R.Civ.P. 15(a)(2). The rationale underlying this rule is that “[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, [the plaintiff] ought to be afforded an opportunity to test his claim on the merits” through an amended pleading. Foman v. Davis,
B. Whether Plaintiffs Bivens Claims for Employment Discrimination are Futile
In Brown v. General Servs. Admin.,
A narrow exception to the Brown rule, however, is applicable where the individual plaintiff does not fall into one of Title VII’s protected classes. See, e.g., Davis v. Passman,
In contrast, some courts have found that individuals who fall under one of Title VII’s protected classes may not bring similar claims under Bivens even if, pursuant to Egan, the court lacks subject matter jurisdiction to review those Title VII claims because they involve a security clearance determination. See, e.g., Brazil,
In Brazil, the court stated that “[s]o long as Congress’ failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to its judgment, because Congress is the body charged with making the inevitable compromises required in the design of a massive and complex ... program [to provide adequate remedial mechanisms for constitutional violations].”
Here, plaintiff seeks to analogize his Bivens claims to the constitutional claims in Davis, arguing that if his dis
CONCLUSION
For the foregoing reasons, the court denies (1) defendant’s motion for summary judgment on plaintiffs failure to exhaust his retaliation claim involving FAMS, (2) defendant’s motions to dismiss for failure to state a claim and for lack of subject matter jurisdiction, and (3) plaintiffs motion to amend the Third Amended Complaint. The parties shall confer and jointly file a status letter in two weeks, or by October 8, 2012, advising the court on how they wish to proceed in this case, and whether a settlement conference before Magistrate Judge Bloom would be beneficial.
SO ORDERED.
Notes
. In plaintiff's declaration dated May 16, 2008 (the "EEOC Declaration”), which was made under penalty of perjury pursuant to 28 U.S.C. § 1746 and submitted in support of his complaint of discrimination to the Equal Employment Opportunity Commission, plaintiff stated that Mitchell told him that "if my security clearance were granted she would not have a problem with me continuing employment as a CBP officer in her district.” (ECF No. 60-6, EEOC Declaration ("EEOC Decl.”) at 4 (emphasis added).) Subsequently, however, plaintiff appears to have amended that statement in the Third Amended Complaint by alleging that Mitchell told him instead that "she would have no problem with [his] continued employment with CBP if he had passed his background check.” (Compl. V 52 (emphasis added).)
. This section of facts is relevant to defendant’s motion for summary judgment on plaintiff's failure to exhaust his retaliation claim against his former supervisors at FAMS. Accordingly, the following facts, which are taken from the parties' statements of undisputed material facts pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff. Flanigan v. General Elec. Co.,
.Plaintiff's attorney at the time advised plaintiff not to raise discrimination or retaliation claims in his challenge to his FAMS termination before the MSPB. (ECF No. 64, Plaintiff’s Opposition to Defendant's Statement of Undisputed Facts and Statement of Material Facts Pursuant to Local Civil Rule 56.1 ("Pi. 56.1 Stmt.”) ¶ 9.)
. Although the EEOC Complaint prompts the complainant to provide the dates of "Prior EEO Activity” in the space that plaintiff wrote "on or after Augfust] 13[J 2003,” it is uncertain whether plaintiff understood “Prior EEO Activity” to refer to prior protected activity or to the alleged retaliation. (See EEOC Compl. at 2.) Accordingly, because all reasonable inferences and ambiguities must be resolved against the defendant for the purposes of deciding its summary judgment motion, Flanigan,
. Plaintiff adds that when he was asked by the EEOC about what was discriminatory in the CBP background investigation, plaintiff stated, "[fjrom what I[] understand I think it leans much more toward retaliation ... [fjor what occurred at the Federal Air Marshal Service.” (PL 56.1 Stmt. ¶ 22 (quoting Corbett Dep. Tr. at 87).) Defendant objects to plaintiff's additional statement, contending that the context of his statement suggested plaintiff was "concerned that CBP was considering plaintiff’s termination by FAMS 'without having all the information,’ not that FAMS employees retaliated against plaintiff for engaging in protected activity.” (ECF No. 65, Defendant’s Reply Statement of Undisputed Material Facts Pursuant to Local Civil R. 56.1 ("Def. Reply 56.1 Stmt.”) ¶ 22 (quoting Corbett Dep. Tr. at 87-88).)
. In the retaliation context, the familiar McDonnell Douglas burden-shifting framework consists of the following three steps: "First, the plaintiff must establish a prima facie case [described above].... If a plaintiff sustains the initial burden, a presumption of retaliation arises. In turn, under the second step of the burden-shifting analysis, the onus falls on the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. Finally, as for the third step, once an employer offers such proof, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action. Jute v. Hamilton Sundstrand Corp.,
. Defendant does not contest that plaintiff has properly alleged the first two elements of a prima facie case of retaliation: (1) that plaintiff was engaged in an activity protected under Title VII, namely the informal complaint of discrimination that plaintiff made to his FAMS supervisors during the May 12, 2003 meeting (Compl. ¶ 31); and (2) that plaintiffs employer, through his FAMS supervisors, was aware of plaintiff's participation in the protected activity.
. The court notes, however, that the issue of subject matter jurisdiction is not waivable and can be raised by the parties or the court sua sponte at any stage of the case. See Fed.R.Civ.P. 12(h)(3).
. Given this disposition based on the lack of any evidence that CBP's adverse suitability determination was related to national security concerns, the court need not decide the issue of whether Egan precludes federal judicial review of executive security clearance denials in the Title VII context.