Pubentz v. Mueller et al

Filing 21

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 5/19/2011.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ENAS PUBENTZ,

)
)
Plaintiff,
)
)
vs.
)
)
ERIC H. HOLDER, JR., Attorney General, )
U.S. Department of Justice, ROBERT S.
)
MUELLER, III, Individually and as
)
Director, Federal Bureau of Investigation;
)
and COLLEEN ENGLAND, Individually
)
and as Foreign Language Program Manager, )
Chicago Division of the Federal Bureau of )
Investigation,
)
)
Defendants.
)

10 C 7722

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on Defendants’ motions to dismiss Plaintiff
Enas Pubentz’s (“Pubentz”) complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons stated below, the motions are granted in part and denied in
part.
BACKGROUND
According to the allegations of the complaint, which we accept as true for
purposes of this motion,1 Pubentz is an Israeli national who joined the Chicago division
of the Federal Bureau of Investigation (“FBI”) as a language analyst in November 2003.

1

Warth v. Seldin, 422 U.S. 490, 501 (1975).

On January 9, 2009, a speaker of Palestinian origin was invited by the University
of Illinois at Chicago (“UIC”) to make a presentation on the Gaza war. During the
presentation, Pubentz expressed her opinions on the Israeli-Palestinian conflict, the
refugee situation, and the political, social and religious concerns in the Middle East.
Because of her dialogue with the UIC speaker, Pubentz was allegedly excluded from
eligibility for the position of Acting Supervisor. Colleen England (“England”),
Pubentz’s direct supervisor and manager of the Foreign Language Program, allegedly
advised her that her exchange with the Palestinian speaker negatively affected her
access to analytical training, collateral assignments and future promotion in the
department. Pubentz further alleges that departmental supervisors and co-employees
characterized her as an “embarrassment” to the FBI, deemed her views on the Gaza war
“unrepresentative of Arabs in the region,” and referred to her as a “Zionist Arab.” From
that day on, Pubentz claims that her supervisors and other members of the department
expressed distrust in her ability to be impartial. England excluded Pubentz from all
training events, supervisory assignments and wrongfully accused her of insubordination.
England, along with other supervisors, denied Pubentz access to future promotional
assignments, falsely accused her of unprofessional work ethic, and negatively and
inaccurately evaluated her performance. Pubentz was also subjected to harassment, a
hostile work environment, and disparate terms and conditions of employment.

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On April 28, 2009, Pubentz filed an Equal Employment Opportunity complaint
(“EEO complaint”) with her department’s Office of Equal Opportunity. The
Department’s Office did not issue a final decision and more than 180 days have elapsed
since the filing of the administrative complaint.
In July 2009, Pubentz transferred to the FBI’s San Francisco office. According
to Pubentz, even though she had left the Chicago office, England continued to penalize
her because Pubentz had engaged in EEO activity in Chicago. Pubentz alleges that
England falsely described her to her new supervisors in San Francisco as “high
maintenance,” insubordinate, and unreliable. As a result, Pubentz was placed on a
performance-improvement-plan,

was

denied

several

work

and

promotional

opportunities, and was continuously subjected to adverse and retaliatory terms and
conditions of employment. On September 17, 2010, Pubentz filed another EEO
complaint with the San Francisco EEO Department. The FBI investigated the matter
and on February 25, 2011, mailed a report to Pubentz notifying her that she had 30 days
to request a hearing before the Equal Employment Opportunity Commission (“EEOC”),
otherwise the Department of Justice (the “DoJ”) would issue a final decision without
a hearing.
On December 5, 2010, Pubentz filed suit in the United States District Court for
the Northern District of Illinois seeking various forms of injunctive and monetary relief.

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In her complaint, Pubentz asserts three Title VII counts against the United States
Attorney General:2 one for discrimination on the basis of race and national origin (count
I), one for retaliation based on the Chicago events (count II), and one for a continuing
course of retaliation taking place in San Francisco (count III). Pubentz also asserts an
additional count for retaliation in violation of her First Amendment (count IV) against
the FBI Director, in his official capacity, and against England in both her individual and
official capacities.3 Defendants now move to dismiss counts III and IV of the complaint,
and to dismiss England from the suit.4
LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a
complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling
on a motion to dismiss, a court must draw all reasonable inferences in favor of the
plaintiff, construe the allegations of a complaint in the light most favorable to the
plaintiff, and accept as true all well-pleaded facts and allegations in the complaint.

2

The parties do not dispute that the U.S. Attorney General is the only proper party defendant
under Title VII claims. The FBI being a subunit of the Justice Department, the appropriate defendant
in all Title VII claims is therefore the U.S. Attorney General. Mulhall v. Ashcroft, 287 F.3d 543, 550
(6th Cir. 2002); see McGuiness v. United States Postal Serv., 744 F.2d 1318, 1322 (7th Cir. 1984).
3

The U.S. Attorney General, the FBI Director, and England are collectively referred to as
“the Defendants.”
4

Defendants do not dispute that the FBI Director is a proper defendant with respect to
Pubentz’s First Amendment retaliation claim.
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Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins
v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual
allegations within a complaint must raise a claim for relief “above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To state a cognizable
claim, a complaint must describe the claim in sufficient detail to give the defendant
notice of what it is and the ground upon which it rests and plausibly suggest that the
plaintiff has a right to relief. EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th
Cir. 2007). With these principles in mind we turn to the motions at hand.
DISCUSSION
I.

Count III - Continuing Retaliation
Defendants argue that this Court should dismiss Pubentz’s continuing retaliation

claim because Pubentz did not exhaust her administrative remedies. Defendants
maintain that, pursuant to 42 U.S.C. § 2000e-16(c), Pubentz could bring an action either
within 90 days from the date of receipt of the DoJ’s final decision or 180 days after the
filing date of her administrative complaint. Because Pubentz filed her second EEO
complaint on September 17, 2010, that is, half-way through the statutory period,
Defendants contend Pubentz’s claim is premature. Pubentz responds that although she
filed a second EEO complaint with the San Francisco FBI office, such a filing was
unnecessary to perfect her continuing retaliation claim.

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“A Title VII plaintiff may bring only those claims that were included in her
original EEOC charge, or that are like or reasonably related to the allegations of the
charge or growing out of the charge.” Gawley v. Ind. Univ., 276 F.3d 301, 314 (7th Cir.
2001). Such allegations include retaliation for filing the EEOC charge. Malhotra v.
Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989). “To meet this standard, the EEOC
charge and the complaint must . . . describe the same conduct and implicate the same
individuals.” Gawley, 276 F.3d at 314. In the instant case, Pubentz alleges that, while
in the Chicago office, England excluded her from all supervisory and training
assignments, denied her promotion, and subjected her to adverse employment
conditions. As a result, Pubentz filed her first EEO charge with the Chicago office.
Pubentz further alleges that, following her transfer to San Francisco, and because
Pubentz had filed the first EEO complaint, England persisted in her retaliation pattern
by making disparaging comments to Pubentz’s new employers. This Court finds that
Pubentz’s claims of continuing retaliation emanating from the Chicago office are
reasonably related to, and grow directly from, her underlying discrimination complaint.
In addition, count III implicates the Chicago supervisors and their allegedly unlawful
employment practices, not the San Francisco supervisors and their actions, as
Defendants suggest. Consequently, we conclude that there was no need for Pubentz to

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file a second EEO complaint with the San Francisco office to perfect her continuing
retaliation claim. The Defendants’ motions to dismiss count III are denied.
Defendants next argue that, with respect to count III, venue properly lies in the
Northern District of California. Title VII provides that venue is proper “in any judicial
district in the State in which the unlawful employment practice is alleged to have been
committed . . . or in the judicial district in which aggrieved person would have worked
but for the alleged unlawful employment practice [.]” 42 U.S.C. § 2000e-5(f)(3). Venue
is proper in the Northern District of Illinois because, at all relevant times, Pubentz
worked and the alleged discriminatory and retaliatory conduct occurred in the Northern
District of Illinois. Further, this Court can reasonably infer from the allegations of the
complaint that, but for the unlawful employment practice, Pubentz would have been
working in Chicago. In sum, we find that Pubentz’s action is properly before us.
II.

Count IV - First Amendment Retaliation
Defendants argue that this Court should dismiss count IV of the complaint

because a federal employee has no monetary remedy under the First Amendment for
alleged violations that occurred in the course of federal employment. Defendants
contend that Pubentz’s exclusive remedy lies under the Civil Service Reform Act of
1978 (the “CSRA”), which gives exclusive jurisdiction over civil service personnel
disputes to the Merit Systems Protection Board (the “MSPB”). Pubentz does not dispute

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the fact that courts are not allowed to award money damages for alleged constitutional
violations. Pubentz, however, retorts that the CSRA does not preclude a federal
employee from pursuing injunctive relief against her employer. As both parties
acknowledge, there is a circuit split as to whether, under the CSRA, a court is precluded
from authorizing injunctive relief.5 The Seventh Circuit has not addressed the issue.
Defendants do not seek dismissal of Pubentz’s First Amendment claim to the extent
Pubentz only requests injunctive relief. Because the parties do not dispute whether
CSRA precludes district courts from granting injunctive relief, we will not, at this stage
of the proceedings, address this issue. Accordingly, we grant Defendants’ motion to
dismiss count IV insofar as Pubentz seeks monetary relief.
III.

Proper Defendants In Count IV
In count IV, Pubentz asserts a First Amendment retaliation claim against England

both in her official and individual capacities. Defendants argue that Pubentz should be
entirely dismissed from the suit.
Defendants first contend that England cannot be sued in her individual capacity.
We agree. To the extent Pubentz seeks to hold England, a federal actor, liable for her

5

Compare Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991), and Stephens v. Dep’t
of Health & Human Servs., 901 F.2d 1571, 1576 (11th Cir. 1990), and Lombardi v. Small Bus.
Admin., 889 F.2d 959, 962 (10th Cir. 1989) (holding CSRA as the exclusive vehicle for all federal
employee claims related to federal employment), with Spagnola v. Mathis, 859 F.2d 223, 229 (D.C.
Cir. 1988) and Mitchum v. Hurt, 73 F.3d 30 (3d Cir. 1995).
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role in the alleged deprivation of her constitutional rights, Pubentz is asserting a Bivens
claim.6 The Seventh Circuit has held that where Congress has provided a comprehensive
remedial mechanism for constitutional violations “Bivens remedies have no place in
individual personnel disputes arising out of federal employment.” Paige v. Cisneros, 91
F.3d 40, 44 (7th Cir. 1996). “There is no question [] that the CSRA provides the
exclusive remedy for an alleged constitutional violation (including an alleged First
Amendment violation) arising out of federal employment.” Richards v. Kiernan, 461
F.3d 880, 885 (7th Cir. 2006). Therefore, Pubentz may not maintain a monetary relief
action against England in her individual capacity. In addition, Pubentz does not argue,
let alone support, that she is entitled to injunctive relief from England in England’s
individual capacity. Accordingly, any claim against England in her individual capacity
is dismissed.
Defendants finally argue that because count IV has already been asserted against
the FBI Director and the U.S. Attorney General, suing England, in her official capacity,
is redundant. A suit against an official in her official capacity is actually a suit against
the government entity. Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). “As long as
the government entity receives notice and an opportunity to respond, an official-

6

In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court held that
victims of constitutional violation perpetrated by a federal actor may sue the individual offender for
damages in federal courts despite the absence of explicit statutory authorization for such suits.
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capacity suit is, in all respects other than name, to be treated as a suit against the entity.”
Id. at 166. Where a plaintiff names the government entity as a defendant in the suit, the
claim against the individual in her official capacity is redundant. See Kielbasa v. Ill.
E.P.A., No. 02 C 4233, 2003 WL 880995, at * 3 (N.D. Ill. Mar. 2, 2003). Here, Pubentz
has asserted count IV against the U.S. Attorney General, the FBI Director, and England.
The FBI is thus on notice of Pubentz’s action and has received the opportunity to
respond through the instant motion to dismiss. It is therefore superfluous for Pubentz
to sue the FBI and an individual in his official capacity. Accordingly, England is
dismissed from the suit.
CONCLUSION
Based on the foregoing analysis, the motions to dismiss are granted in part and
denied in part.

Charles P. Kocoras
United States District Judge
Dated: May 19, 2011

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