Ortiz-Lopez et al v. United States of America et al

Filing 44

OPINION. Signed by Judge Madeline C. Arleo on 5/7/2015. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LUIS N. ORTIZ-LOPEZ AND
GLENDA LIZ BAEZ-ACOSTA,

Civil Action No. 14-3823

Plaintiffs,
V.

OPINION
UNITED STATES OF AMERICA, et al.,:
Defendants.

ARLEO, UNITED STATES DISTRICT JUDGE

I.

INTRODUCTION

This matter comes before the Court by way of Defendants’ motion to dismiss Plaintiffs’
Luis N. Ortiz-Lopez and Glenda Liz Baez-Acosta’s Complaint [Dkt. No. 27]. For the reasons set
forth herein, Defendants’ motion is GRANTED.
II.

BACKGROUND

Plaintiff Ortiz-Lopez, a resident of Puerto Rico, applied via usajobs.gov for a position as
a Program Assistant, Federal Air Marshal in Newark, NJ. Compl., Dkt. No. 1,

¶

12. On October

25, 2010, Mr. Ortiz-Lopez was informed that he was selected for an interview, which was
scheduled for November 12, 2010, at 2:00 p.m.
window clerk to a conference room.
Sandolva and Nicky Bmno. Id.

¶

¶

¶
15.

14. When he arrived, he was escorted by a
Mr. Ortiz-Lopez first met with Kathleen

15. Ms. Sandolva, Mr. Bruno, and Mr. Ortiz-Lopez all sat at

the same conference room table; Mr. Bruno was reading a paper. Id.

¶J

15-16. When Ortiz

Lopez began speaking, Mr. Bruno looked at Ms. Sandolva, both interviewers stood up, Ms.

Sandolva told Mr. Ortiz-Lopez to remain seated, and the interviewers left the room. Iç

¶

16.

About 15 minutes later, Ms. Sandolva returned with Windy Sims. Ms. Sims indicated this was
her first interview and explained to Mr. Ortiz-Lopez that she would ask him three questions.
When asked the first question, Mr. Ortiz-Lopez answered and Ms. Sims then “abruptly said,
‘Please, please, please can I read the next question.” Id. at
asked two other questions.

¶

20. Mr. Ortiz-Lopez was then

This portion of the interview lasted ten minutes. jç[, Mr. Ortiz

Lopez was then asked to write something, which took 20 minutes. Id.

¶ 21.

Plaintiffs claim Mr. Ortiz-Lopez “felt discriminated due to the treatment received at the
interview.” Id.

¶

21. For example, while Mr. Ortiz-Lopez was asked three questions, he was

graded on four answers.

¶

22.

Mr. Ortiz-Lopez also claims that “the hiring process was

nullified and the interviews dismissed” and “a new process commenced without including the
plaintiff.” Id. Ultimately, a non-Hispanic from the mainland United States was hired for the
position. Id.
On November 17, 2010, Mr. Ortiz-Lopez filed an administrative complaint with the DHS
Office of Civil Rights and Civil Liberties (“CRCL”), claiming discrimination based upon race
and place of birth. Id.

¶ 23.

Notice of Right to Sue.

On February 3, 2012, CRCL issued a Final Agency Decision and a

¶

25.

On April 30, 2012, Plaintiffs filed a civil action against

Defendants in the United States District Court for the District of Puerto Rico. Id.

¶J

26. On

November 5, 2012, Plaintiffs filed two administrative claims notices with DHS. Id. Plaintiffs
then moved to voluntarily dismiss their civil case and the matter was dismissed without prejudice
on December 11, 2012. j4. On July 5, 2013, Plaintiffs initiated a second civil action in the
District of Puerto Rico. Id. The matter was then transferred to this Court. See Dkt. No. 18.

2

Plaintiffs’ Complaint is devoid of separate causes of action. Instead, Plaintiffs stated that
the Court’s jurisdiction is “invoked under Title 28, U.S.C.A., Section 2671 on to 2680, Federal
Tort Claims Act, and under the Equal Employment Opportunity Commission and it law” and
“under Title VII and 42 of the United State Code, Section 1983, Civil Rights Act 1964.”
Compi., Dkt. No. 1,

¶ 2-3.

Additionally, Plaintiffs state that “[a] violation to the constitutional

right to a Due Process is invoke” and Plaintiffs also “invoke the labor law of New York against
discrimination.”
The Court interprets Plaintiffs’ Complaint as seeking recovery under: (1) the Federal Tort
Claims Act (“FTCA”); (2) Title VII; (3) 42 U.S.C.

§

1983; (4) the Fifth Amendment; and (5)

New York state labor laws.
III.

PLAINTIFF ORTIz-LopEz’s CLAIMS

a. Federal Tort Claims Act
The Federal Tort Claims Act sets forth the limited circumstances under which the United
States waives its sovereign immunity from suit in federal court, and establishes certain
exceptions to that waiver.

28 U.S.C.

§

2674. Here, Defendants argue that the FTCA’s

waiver of sovereign immunity does not extend to the constitutional tort claims alleged in the
Complaint and Plaintiffs do not disagree. See Dkt. No. 40, at 14, 17. As such, since it appears
that Plaintiffs only seek recovery under the FTCA for constitutional tort violations, these claims
are dismissed with prejudice.

$

Dambach v. United States, 211 F. App’x 105, 107 (3d Cir.

2006); Vilanueva v. United States, 662 F.3d 124, 127 (1st Cir. 2011).
b. Title VII

To state a cause of action of discriminatory hiring under Title VII, a plaintiff must plead
that:

3

(1) the plaintiff belongs to a protected class; (2) he/she was
qualified for the position; (3) he/she was subject to an adverse
employment action despite being qualified; and (4) under
circumstances that raise an inference of discriminatory action, the
employer continued to seek out individuals with qualifications
similar to the plaintiffs to fill the position.
Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). Defendants move to
dismiss arguing that Mr. Ortiz-Lopez has failed to plead that he was qualified for the position.
The Court agrees and this claim is dismissed without prejudice.’
42 U.S.C.

§ 1983

Section 1983 creates a cause of action for deprivations of federal constitutional or
statutory rights by persons acting under color of state law. See, e.g., West v. Atkins, 487 U.S.
42, 46 (1988).

Here, Plaintiffs name as Defendants: the United States, DHS, ICE, Eric Holder,

and Janet Napolitano. As the federal government and federal agencies are not “persons” under
Section 1983, the claims against them must be dismissed with prejudice.

$ Elhassan v. Goss,

No. 06-1000, 2007 WL 319484, at *4 (D.N.J. Jan. 30, 2007). Plaintiffs’ claims against Eric
Holder and Janet Napolitano are also dismissed with prejudice because Section 1983 does not
apply to federal officers acting in their official capacities. See Sookbzokov v. Holder, No. 106260, 2011 WL 2293853, at *5..6 (D.N.J. June 7, 2011). Separately, these Defendants must be
dismissed because no allegations of personal involvement are alleged in the Complaint.

Defendants also assert that, even if Mr. Ortiz-Lopez alleged that he was qualified for the
position, the claim must still be dismissed because the allegations of discrimination during the
interview process are no more than “naked assertions devoid of further factual enhancement” and
are thus not entitled to the presumption of truth. See Defs. Br., Dkt. No. 27-1, at 5. The Court
disagrees. The allegations in the Complaint, taken together, are sufficient to suggest that Mr.
Ortiz-Lopez was treated differently than other non-Hispanic interviewees during the interview
process and a non-Hispanic was ultimately hired over him. If he pleads he was qualified for the
position in an amended complaint, this would be sufficient to state a claim.
4

Carter v. New Jersey, No. 11-439, 2011 WL 5864083, at *9 n.6 (D.N.J. Nov. 22, 2011);
Stampone v. Crifasi, No. 05-3498, 2006 WL 2711471, at *9 (D.N.J. Sept. 20, 2006).2
d. Fifth Amendment Claim
Plaintiffs assert in the Complaint the “right to a Due Process is invoke,” but provide no
further explanation or elaboration. Compi., Dkt. No. 1,

¶ 3.

Giving the most liberal construction

to the Complaint, the only conceivable claim pled could be a Fifth Amendment substantive due
process claim.

In response to the motion to dismiss, however, plaintiffs acknowledge that Title

VII provides the sole remedy against federal officials for discriminatory employment actions.
See P1. Opp’n Br., Dkt. No. 40, at 19; see also Makkv v. Chertoff, 489 F. Supp. 2d 421, 432
(D.N.J. 2007).

And while they cite to Bush v. Lucas, 462 U.S. 367 (1983), that case is of no

help, since it only recognizes that claims can be stated for non-personnel actions, such as
wiretapping, warrantless searches, or uncompensated takings—which are not alleged here. The
Fifth Amendment substantive due process claim is therefore dismissed with prejudice.
e. New York Employment Law
In their moving brief, Defendants argue that New York employment law cannot possibly
provide relief, as Plaintiffs are residents of Puerto Rico and Ortiz-Lopez’s interview occurred in
New Jersey. Plaintiffs do not challenge this argument in their opposition brief. As such, this
claim is dismissed with prejudice.

2

In the section of their brief addressing their FTCA claims, Plaintiffs cite to Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs,
however, explicitly recognize they cannot recover under Bivens. $çç Dkt. No. 40, at 15
(acknowledging that the Supreme Court has “refused to extend Bivens to authorize suits against
federal agencies”). As such, to the extent Plaintiffs seek to recover against these Defendants
under Bivens, these claims are dismissed with prejudice. See Igbal, 556 U.S. at 676 (“[lIt is
undisputed that supervisory Bivens liability cannot be established solely on a theory of
respondeat superior.”) (quotation omitted, alteration in original).
5

IV.

PLAINTIFF BAEZ-ACOSTA’S CLAIMS

Ms. Baez-Acosta does not claim that she interviewed for a government position or was
otherwise discriminated against by a federal agency. Instead, she seeks to bring a derivative
loss-of-consortium claim based upon damages suffered by her husband, Mr. Ortiz-Lopez.
Compl., Dkt. No. 1,

$

¶J 30-31.

For the same reasons Mr. Ortiz-Lopez’s claims fail, Plaintiff Baez-Acosta’s claims also
fail. Furthermore, even if Mr. Ortiz-Lopez is able to cure the pleading deficiencies identified
above, Ms. Baez-Acosta cannot recover under Title VII or section 1983 in any event.

$

Mariotti v. Mariotti Bldg. Prods., Inc., 714 F.3d 761, 769 (3d Cir. 2013) (non-employees cannot
recover under Title VII); Williams v. City of Chester, No. 14-4420, 2015 WL 224384, at *4
(E.D. Pa. Jan. 15, 2015) (spouse cannot bring a derivative claim under 42 U.S.C.

§

1983). Her

claims are therefore dismissed with prejudice.
V.

CONCLUSION

For the reasons set forth herein, Defendants’ motion to dismiss [Dkt. No. 27] is
GRANTED. Specifically, all claims except Mr. Ortiz-Lopez’s Title VII claim are dismissed
with prejudice and Mr. Oritz-Lopez’s Title VII claim is dismissed without prejudice. All claims
brought by Ms. Baez-Acosta are dismissed with prejudice.

An appropriate Form of Order

accompanies this Opinion.
A word of caution:

any renewed complaint must carefully articulate any claims

consistent with this Opinion and applicable law. Any frivolous pleadings will be subject to
sanctions.
Dated: May 7, 2015

Is Madeline CoxArleo
Hon. Madeline Cox Arleo
United States District Judge

6