Whitby v. Chertoff

Filing 67

ORDER granting in part and denying in part 47 Motion to Amend/Correct; granting in part and denying in part 54 Motion to Amend/Correct; denying 56 Motion for Sanctions; denying 56 Motion for Default Judgment; granting in part and denying in part 63 Motion for Leave to File; granting in part and denying in part 64 Motion for Leave to File; granting in part and denying in part 65 Motion for Leave to File. Ordered by Judge Hugh Lawson on 2/2/2010. (nbp)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA M AC O N DIVISION AD O N IS B. WHITBY, : : P la in t if f , : : v. : : M IC H AE L CHERTOFF, Secretary of : U .S . Department of Homeland : S e c u r i t y, : : D e fe n d a n t. : _______________________________ :

C ivil Action No. 5 : 0 8 -C V -2 4 2 (HL)

ORDER
B e fo re the Court are Plaintiff's, Adonis W h itb y ("W h itb y "), Motions for Leave to Amend Complaint (Docs. 47, 54, 63, 64, and 65). Also before the Court is W h itb y's Motion for Sanctions or Default Judgment (Doc. 56). For the following re a s o n s , W h itb y 's Motions are denied in part and granted in part.

I.

B AC K G R O U N D O n July 22, 2008, W h itb y , proceeding pro se, filed his complaint in this Court

a lle g in g that during his employment at the Transportation Security Agency ("TSA"), D e fe n d a n t discriminated against him on the basis of race, color, age, disability, and re ta lia tio n . The Court dismissed W h itb y 's disability claim because it was not

c o g n iz a b le under any federal cause of action (Doc. 50). The Court did not dismiss W h itb y's remaining claims of discrimination.

W h itb y was terminated from his employment by Defendant on December 27, 2 0 0 7 . W h itb y now seeks to amend his complaint to include, among other things, c la im s arising from his termination. He also asks the Court to impose sanctions on D e fe n d a n t and enter a default judgment against Defendant because he believes that D e fe n d a n t recklessly failed to provide certain e-mails to him.

II.

M O T IO N S TO AMEND (Docs. 47, 54, 63, 64, and 65) T h e Federal Rules state that "the court should freely give leave [to amend a

p le a d in g ] when justice so requires." Fed. R. Civ. P. 15(a)(2). A district court should n o t deny leave to amend "unless there is a substantial reason." Burger King Corp. v. W e a ve r, 169 F.3d 1310, 1319 (11th Cir.1999). A motion to amend may be denied o n "numerous grounds, such as undue delay, undue prejudice to the defendants, a n d futility of the amendment." Carruthers v. BSA Adv., Inc., 357 F.3d 1213, 1218 (1 1 th Cir. 2004) (citation omitted). W h e n a motion to amend is denied based upon fu tility, the court makes a legal conclusion that the proposed amended complaint n e c e s s a rily would fail. St. Charles Foods, Inc. v. Am.'s Favorite Chicken Co., 198 F .3 d 815, 822 (11th Cir.1999). A. C la im for Wrongful Termination (Doc. 47)

W h itb y seeks to add a claim that he was unlawfully terminated on the basis o f race, color, age, disability, and reprisal. (Doc. 47). Defendant did not oppose W h itb y's request, but stated that it would reserve its right to assert an affirmative 2

defense for W h itb y's failure to exhaust his administrative remedies. The Court finds th a t the facts underlying W h itb y 's termination may state a plausible claim of race, c o lo r, age, and reprisal discrimination;1 accordingly, the Court grants W h itb y leave to amend his complaint to include a wrongful termination claim based on race, color, a g e , and reprisal. B. 4 2 U.S.C. § 1981 Claim (Doc. 54)

W h itb y also wishes to amend his complaint to include a 42 U.S.C. § 1981 c la im (Doc. 54). Defendant opposes the amendment arguing it would be futile. The C o u rt agrees. Section 1981 provides relief for claims against state actors, "but does n o t provide a cause of action for discrimination under color of federal law." Lee v. H u g h e s , 145 F.3d 1272 (11th Cir. 1998). Because W h itb y is suing his employer, a fe d e ra l agency, he cannot bring a claim against it pursuant to 42 U.S.C. §1981. His m o tio n to amend his complaint to include a 42 U.S.C. §1981 is therefore denied. C. Ad d itio n a l Claims Whitby Seeks to Add to His Complaint (Doc. 63)

W h itb y next moves to amend his complaint to include a claim against d e fe n d a n t for violating the W h is tle b lo w e r Protection Act ("W P A "), 5 U.S.C. § 2302 (D o c . 63). Defendant opposes the amendment claiming that W h itb y has never gone th ro u g h the administrative procedures that are prerequisites to filing a claim under th e W P A in federal court. The Court believes that W h itb y may not have timely
1

As explained in its order of June 16, 2009, Plaintiff cannot assert a disability discrimination claim against the TSA. Thus, the Court denies his request to include a wrongful termination claim based on disability discrimination. 3

exhausted his administrative remedies, but it is possible that W h itb y may allege facts in his amended complaint showing he exhausted them.2 The Court will therefore a llo w him to amend his complaint to include a W P A claim. The Court believes that D e fe n d a n t's argument regarding W h itb y 's exhaustion of administrative remedies w o u ld be more appropriately raised in a motion to dismiss or in a motion for s u m m a ry judgment. W h itb y also seeks to amend his complaint to include a claim under 5 U.S.C. § 7513. This statute does not create a right to relief in the district court; rather, s e c tio n (2)(d) of the statute allows an aggrieved employee to appeal to the Merit S ys te m s Protection Board ("MSPB"). Because this statute does not provide a cause o f action for Whitby to pursue in federal court, the Court finds that this amendment w o u ld be futile. F in a lly , W h itb y wishes to include a 30 U.S.C. § 3730(h) claim. This statute d o e s not exist.3 The Court finds this proposed amendment is futile. A c c o rd in g ly, W h itb y may amend him complaint to include a W P A claim, but

An employee may bring a "mixed case claim," one that alleges both WPA and Title VII claims. If the case is mixed, then the employee may seek relief either by filing a complaint with the agency's equal employment opportunity department, or by appealing directly to the Merit Systems Protection Board. 29 C.F.R. § 1614.302(b); Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002). In its response, Defendant states that Whitby appears to be referring to 31 U.S.C. § 3730(h)(1) and the National Transit Systems Security Act, 6 U.S.C. § 1142 et seq. While that may be true, Whitby is the master of his complaint. The Court therefore declines to surmise what statutes Whitby intended to add to his complaint when he filed his motions to amend. 4
3

2

he may not include claims under 5 U.S.C. § 7513 and 30 U.S.C. § 3730(h). D. C la im s Against Officers in their Individual and Official Capacities (D o c s . 64 and 65)

In his last two motions requesting leave to amend his complaint (Docs. 64 and 6 5 ), W h itb y wishes to add the following TSA supervisors to his complaint: W illie W illia m s , David Padlo, Larry Lee Sr., and Joseph Edward Zavodny. After W h itb y files his amended complaint, his complaint will include claims c o g n iz a b le under Title VII, the Age Discrimination in Employment Act ("ADEA"), and th e W P A . Title VII is the exclusive remedy of an employee or applicant for federal e m p lo ym e n t who alleges discrimination on the basis of race, color, religion, sex, or n a tio n a l origin. Brown v. General Servs Admin., 425 U.S.820, 835, 96 S.Ct. 1961, 4 8 L.Ed.2d 402 (1976). The ADEA is the exclusive remedy of an employee or a p p lic a n t for federal employment who alleges discrimination on the basis of age. Ray v. Nimmo, 704 F.2d 1480, 1485 (11th Cir. 1983). The W P A provides protection to federal employees against agency reprisal for whistleblowing activities, such as d is c lo s in g illegal conduct, gross mismanagement, gross waste of funds, or acts p re s e n tin g substantial dangers to health and safety. 5 U.S.C. § 2302(b)(8). Michael Chertoff is the only proper defendant for these claims. Under 42

U .S .C . § 2000e-16(c), a Title VII plaintiff is required to name the head of the a p p ro p ria te agency as the defendant. Under the W P A , if W h it b y exhausted his a d m in is tra tive remedies by appealing to the MSPB, then the appropriate defendant

5

is the agency responsible for taking the personnel action. 5 U.S.C. § 7703(a)(2). If W h itb y pursued his mixed case of Title VII and W P A claims before the EEO office, th e n the proper defendant is the head of the employing agency. 42 U.S.C. § 2000e1 6 (c ). As for his ADEA claim, the proper defendant in an ADEA case is the same p e rs o n as under Title VII. See Attwell v. Granger, 748 F. Supp. 866, 873 (N.D. Ga. 1 9 9 0 ) (explaining that although the ADEA does not specify who must be named as a defendant, Title VII and ADEA should be construed consistently when a section o f the ADEA can be traced to a similar section of Title VII). Here, Michael Chertoff, the Secretary of the Department of Homeland S e c u rity, is the properly named defendant because he is the head of W h itb y 's e m p lo yin g agency. The Court therefore denies Whitby's motion for leave to amend h is complaint to sue the named TSA supervisors in their individual and official c a p a c itie s .

III.

M O T IO N FOR SANCTIONS (DOC. 56) W h itb y has moved the Court to issue sanctions, specifically a default

ju d g m e n t, against Defendant because he alleges Defendant violated the Court's O rd e r of June 11, 2009 (Doc. 49), where Defendant agreed to produce e-mails about W h itb y and other employees of Defendant. W h itb y alleges that Defendant did not p re s e rve e-mails and did not adequately search its computer files to locate the em a ils . W h itb y complains that: (1) Defendant did not retrieve e-mails for the years 6

2003, 2004, and 2005 located on David Padlo's crashed computer; (2) Defendant d id not conduct a proper key term search of its computers; (3) Defendant did not s e a rc h some of TSA managers' computers; (4) TSA supervisor Raymond Dotson s ta te d that some of his computer files and e-mails were transferred to CDs in June 2 0 0 8 , and the CDs were later discovered to be unreadable; (5) TSA e-mail data s h o u ld have been saved on back-up tapes; (6) for 2003 through 2007, TSA s u p e rvis o r Larry Lee submitted no e-mails or other documents that contained in fo rm a tio n about W h itb y ; and (7) multiple TSA supervisors did not produce any em a ils containing information about W h itb y . In response, Defendant asserted it acted reasonably to preserve documents a n d electronic records, that it provided W h itb y with all available records and d o c u m e n ts , and that it has not destroyed or altered any documents. Defendant s u b m itte d affidavits explaining the efforts TSA took to retrieve the requested e-mails fro m Richard Hurst, staff attorney for the TSA who has managed W h itb y's case, and D e b o ra h Lockhart, TSA administrative officer at Hartsfield-Jackson International A ir p o r t . The Federal Rules provide that when a party does not obey a discovery order, th e court may issue a sanction by "rendering a default judgment against the d is o b e d ie n t party." Fed. R. Civ. P. 37(b)(2)(A)(vi). A party may avoid sanctions for n o n c o m p lia n c e with an order if it made all reasonable efforts to comply with the c o u rt's order. BankAtlantic v. Blythe Eastman Paine W e b b e r, Inc., 12 F.3d 1045, 7

1050 (11th Cir.1994).

District courts enjoy considerable discretion in deciding

w h e th e r to sanction a party and to what degree. Chudasama v. Mazda Motor Corp., 1 2 3 F.3d 1353, 1366 (11th Cir.1997). As for Defendant's failure to retrieve e-mails for 2003 through 2005 located o n David Padlo's crashed computer, the Court finds that there is no evidence that in 2005 and prior to 2005 Defendant was under a duty to preserve evidence. Until W h itb y first complained to the EEO or appealed to MSPB, there was no anticipated o r impending litigation that created a duty on the part of Defendant to preserve p o te n tia l evidence. The Court cannot find any allegation regarding W h itb y 's first E E O or MSPB contact in his pleadings or in the motions currently pending before the C o u rt. Because it is unclear on what date the duty to preserve evidence arose, the C o u rt is unwilling to sanction Defendant for its failure to retrieve the e-mails located in David Padlo's crashed computer. This conclusion is supported by the fact that th e re is no evidence that David Padlo intentionally did not comply with the Court's o rd e r requiring Defendant to produce e-mails referencing W h itb y . W h itb y also contends that the search process used by Defendant was in a d e q u a te . Deborah Lockhart's affidavit and accompanying exhibit demonstrate th a t TSA employees were required to search for e-mails referencing W h itb y by e n te rin g "Adonis W h itb y" in the TSA e-mail box "Search All Mail Items." W ith o u t any e vid e n c e to the contrary, except for W h itb y 's conclusory assertions, the Court finds th a t the search conducted by TSA was reasonable and does not warrant sanctions. 8

Likewise, W h itb y's allegation that Defendant did not search some of TSA m a n a g e rs ' computers is conclusory and he provides no evidence to support it. Defendant, on the other hand, has shown that it instructed TSA employees that m ig h t have relevant e-mails to search their e-mail accounts. The Court will not im p o s e sanctions based on W h itb y 's mere assertion that Defendant failed to search s o m e of the managers' accounts. W h itb y alleges that Defendant should be sanctioned because Raymond D o ts o n failed to produce emails saved to his CDs and because Defendant failed to p re s e rve other e-mails by saving them on a back-up system. W ith o u t any evidence s h o w in g that it was possible to retrieve the data on the unreadable CDs and that the C D s contained relevant e-mails, the Court cannot find that Defendant acted u n re a s o n a b ly by not retrieving the files saved on Raymond Dotson's CDs. Moreover, there is no indication Defendant acted unreasonably by not having a b a c k -u p system because there is no strong reason to believe, aside from David P a d lo 's crashed computer and Raymond Dotson's unreadable CDs, that Defendant lo s t any e-mail data. Thus, the Court declines to sanction Defendant for not saving a ll TSA e-mail data to back-up tapes or for choosing not to retrieve the files located o n Raymond CDs. As for W h itb y's complaint that for the years 2003 through 2007, TSA s u p e rvis o r Larry Lee submitted no emails that contained information about Whitby, th e Court finds that there is no evidence showing that Larry Lee had any e-mails to 9

turn over for those years. W ith o u t any indication to the contrary, the lack of e-mails in d ic a te s that Larry Lee did not communicate with Whitby or to anyone about W h itb y . Larry Lee's failure to produce e-mails does not support a finding that sanctions are w a rra n te d . In sum, after considering the evidence in whole, the Court finds that W h itb y f a ils to point to sufficient evidence of Defendants' failure to comply with discovery o rd e r to provide a foundation for the imposition of sanctions. Although it chooses not to impose sanctions, the Court does have questions a s to why certain TSA supervisors provided no e-mails to Defendant. W h itb y alleges th a t Larry Lee, Elizabeth Battle, Jerry Estes, Sharnette Everson, Beverly Harvard, M ik e Mann, Barbara McClendon, Marshall Smith, Mark Hepburn, Iona JnBaptist, and N ic o le Schaeffer did not produce any e-mails even though they possess e-mails that re fe re n c e d him. In his reply brief, W h itb y has included some of the e-mails he received from D e fe n d a n t. The attached e-mails lead the Court to believe that some of his

s u p e rvis o rs possess e-mails about him that they failed to produce. The most salient in fo rm a tio n from these e-mails is: on December 14, 2007, David Padlo sent an em a il referencing W h itb y to, among others, Nicole Schaeffer and Jerry Estes. Also on D e c e m b e r 14, 2007, Karen Peoples sent an e-mail that referenced W h itb y to Jerry E s te s and Nicole Schaeffer. On December 10, 2007, Jerry Estes forwarded Barbara M c C le n d o n an e-mail regarding W h itb y. On December 7, 2007, Joyce Brown sent 10

an e-mail referencing W h itb y to, among others, Elizabeth Battle, Jerry Estes, Nicole S c h a e ffe r. On August 30, 2007, Jerry Estes emailed Iona JnBaptist and stated that W h itb y had been approved for six leave. From this information, it is the Court's view that Jerry Estes, Barbara M c C le n d o n , Nicole Schaeffer, Elizabeth Battle, and Iona JnBaptist may possess em a ils about W h itb y . The Court therefore orders Defendant to show cause by F e b ru a ry 12, 2010, in writing, as to why these supervisors did not provide Defendant w ith any e-mails in response to the Court's June 11, 2009 Order. As for the re m a in in g supervisors that W h itb y contends failed to produce e-mails, there is no e vid e n c e , aside from W h itb y's assertion, that these supervisors possessed e-mails th a t referenced him. Accordingly, the Court does not order Defendant to show c a u s e as to why those supervisors did not produce e-mails.

IV.

C O N C L U S IO N F o r the explained reasons, W h itb y 's Motions for Leave to Amend are granted

in part and denied in part. The Court cautions W h itb y that it will not look favorably u p o n any additional motions for leave to amend that he may file. Given that Whitby h a s filed five motions for leave to amend, other additional motions will be presumed b y the Court to be filed for dilatory motive or in bad faith. His Motion for Sanctions or Default Judgment is denied. Defendant is ordered to show cause as to why TSA supervisors Jerry Estes, Barbara McClendon, Nicole 11

Schaeffer, Elizabeth Battle, and Iona JnBaptist failed to produce e-mails that r e fe r e n c e d W h itb y . S O ORDERED, this the 2 n d day of February, 2010.

s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE lm c

12