BAIG v. NUCLEAR REGULATORY COMMISSION

Filing 19

OPINION. Signed by Judge Freda L. Wolfson on 6/6/2011. (gxh)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
______________________________
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Plaintiff,
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vs.
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NUCLEAR REGULATOR COMMISSION
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Defendant.
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______________________________:
USMAN M. BAIG

Civil Action No. 10-0842

OPINION

WOLFSON, United States District Judge:
Defendant Nuclear Regulatory Commission (“Defendant”) moves to dismiss the Complaint
filed by pro se Plaintiff Usman M. Baig (“Plaintiff”), pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6). The Complaint alleges that, during the course of Plaintiff’s employment with Defendant,
Defendant unlawfully discriminated against Plaintiff based on his race and age. The Complaint also
asserts violations of federal whistleblower laws and breach of contract by Defendant. For the
reasons that follow, the Court grants Defendant’s motion; Counts I and II of the Complaint are
dismissed without prejudice; all other counts are hereby dismissed with prejudice. The Court
provides Plaintiff fifteen days from the date of the Order accompanying this Opinion to amend the
Complaint with respect to Counts I and II of the Complaint.1

1

Plaintiff also filed a motion for summary judgment on May 31, 2011. Because the
Court grants Defendant’s motion to dismiss, Plaintiff’s summary judgment motion is dismissed
as moot.
1

I.

Background
For the purpose of this Opinion, the facts alleged in the Complaint are assumed to be true.

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). Plaintiff filed the Complaint on
February 19, 2010. Plaintiff alleges that he received an adverse “Equal Employment Decision” on
November 24, 2009, denying a prior complaint he made, and said letter also informed him of his
right to file a civil action within 90 days. Without dispute from Defendant, this appears to be a rightto-sue letter from the Equal Employment Opportunity Commission (“EEOC”); however, a copy of
the letter was not provided to the Court. For the purposes of this motion, the Court assumes that
Plaintiff received a right-to-sue letter from the EEOC.2
At the outset, the Court notes that the pro se Complaint mainly consists of legal conclusions
and is devoid of any factual allegations. First, the Complaint improperly asserts a cause of action
pursuant to a federal regulation - 29 C.F.R. § 1614. The rest of the Complaint consists of eight
causes of action. Count I alleges that Plaintiff, a native of the country of India, was wrongfully
discriminated against because of his ethnic background and nationality; no further factual allegations
were provided. Similarly deficient, Count II alleges that Plaintiff was discriminated against because
of his age, and no further factual allegations were provided other than that Plaintiff is more than sixty
years old and has “long experience and has an age of experience in the field.” Compl., Count II, ¶
2. Count III alleges that Plaintiff, despite being highly qualified for promotion, was nevertheless
discriminated against and did not receive a promotion. Count IV alleges that Plaintiff, despite being
2

The record outside of the pleadings submitted by both parties indicates that
Plaintiff did indeed make an EEOC filing. See Declaration of Suto-Goldsby. However, beyond
Plaintiff’s assertions, neither party has provided the Court with a copy of the right-to-sue letter.
The Court also notes that the record concerning the EEOC filing suggests that only claims related
to discrimination were filed with the EEOC.
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fully qualified, was discriminated against and not given favorable assignments. Count V alleges that
Plaintiff, despite being fully qualified, was wrongfully discriminated against and was not paid fairly
as compared to his peers. Count VI alleges that Plaintiff, despite being extraordinarily qualified and
having “permanent tenure,” Compl., Count VI, ¶ 4, nevertheless Defendant terminated his
employment. Again, in none of these counts does Plaintiff make any further supporting factual
allegations.
In Count VII, Plaintiff alleges that Defendant wrongfully terminated him in violation of “law
for whistle blower’s safeguard from adverse action,” Compl, Count VII, ¶ 6, after he provided “input
for the improper management in the Division and blew the whistle for the wrong practices conducted
in the section” to the Office of Personnel Management (“OPM”) in surveys conducted in 2007 and
2008. Count VIII alleges that Plaintiff was promised a quick promotion during his hiring process,
and that Defendant breached that oral contract when Plaintiff did not receive such a promotion. As
is consistent with the rest of the Complaint, Plaintiff provided no further details concerning these
allegations. The Complaint made a general demand for $454,000 in damages.
On May 17, 2010, Plaintiff petitioned for default judgment when Defendant failed to respond
to the Complaint. Defendant responded to the petition arguing that default judgment should be
denied because Plaintiff improperly served the summons and complaint. On Aug. 18, 2010, the
Court denied default judgment and ordered Plaintiff to effectuate proper service on Defendant.
Plaintiff provided the Court with proof of service on September 20, 2010. Now, Defendant moves
to dismiss the Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6), or in the alternative, for
summary judgment.

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II.

Motion to Dismiss Standard of Review
The Federal Rules of Civil Procedure provide that a complaint “shall contain (1) a short and

plain statement of the grounds upon which the court's jurisdiction depends . . . (2) a short and plain
statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment
for the relief the pleader seeks.” Fed. R. Civ. P. 8(a). The purpose of a complaint is “to inform the
opposing party and the court of the nature of the claims and defenses being asserted by the pleader
and, in the case of an affirmative pleading, the relief being demanded.” 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004).
In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a Court
must take all allegations in the complaint as true, viewed in the light most favorable to the plaintiff
“and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations
omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court “retired” the
language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 561 (quoting
Conley, 355 U.S. at 45-46). Rather, the factual allegations in a complaint “must be enough to raise
a right to relief above the speculative level.” Id. at 555. The Third Circuit summarized the pleading
requirement post-Twombly:
The Supreme Court's Twombly formulation of the pleading standard can be summed
up thus: ‘stating . . . a claim requires a complaint with enough factual matter (taken
as true) to suggest’ the required element. This ‘does not impose a probability
requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise
a reasonable expectation that discovery will reveal evidence of ‘the necessary
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element.’
Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).

In affirming that the Twombly standard applies to all motions to dismiss, the Supreme Court
recently further clarified the 12(b)(6) standard. “First, the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Iqbal, 129 S.Ct. at 1950. Accordingly, “a court considering a motion
to dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. In short, “a complaint must do more
than allege the plaintiff's entitlement to relief. A complaint has to ‘show’ such an entitlement with
its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
The Third Circuit recently reiterated that “judging the sufficiency of a pleading is a
context-dependent exercise” and “[s]ome claims require more factual explication than others to state
a plausible claim for relief.” West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85, 98
(3d Cir. 2010). This means that, “[f]or example, it generally takes fewer factual allegations to state
a claim for simple battery than to state a claim for antitrust conspiracy.” Id. That said, the Rule 8
pleading standard is to be applied “with the same level of rigor in all civil actions.” Id. (quoting
Iqbal, 129 S.Ct. at 1953).
III.

Discussion
A. Employment Discrimination
While the Complaint was inartfully pled, the Court construes the Complaint as asserting both

racial discrimination under Title VII of the Civil Rights Act (“Title VII”) and age discrimination
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under the Age Discrimination in Employment Act (“ADEA”).3 Similarly, the Court construes the
Complaint as alleging that because Defendant discriminated against Plaintiff, he was passed over
for promotions, was not given better work assignments, did not receive pay raises to which he was
entitled, and was ultimately terminated by Defendant.4
Under Title VII,
[i]t shall be an unlawful employment practice for an employer (1) to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin;
or (2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of such
individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2. ADEA contains similar prohibits against discrimination on account of age.
29 U.S.C. § 623(a). In order to establish a prima facie case of Title VII discrimination, Plaintiff must
show that “(1) the plaintiff belongs to a protected class; (2) he/she was qualified for the position; (3)

3

Plaintiff’s alleged cause of action, pursuant to 29 C.F.R. § 1614, is not proper.
Smith v. Dearborn Financial Servs, Inc., 982 F.2d 976, 979 (6th Cir. 1993) (“[F]ederal
regulations cannot themselves create a cause of action; that is a function of the legislature”); see
Kalick v. Nw. Airlines Corp., 372 Fed. Appx. 317, 320 (3d Cir. 2010) (“Kalick cannot simply
cite to a federal regulation that does not give rise to a private cause of action in order to satisfy
federal subject matter jurisdiction”).
4

Defendant seeks to dismiss each count of the Complaint separately for failure to
meet the minimum pleading requirements of Rule 8(a). Specifically, Defendant argues that there
are no discernable causes of action applicable to Counts III, IV and V, and that Count VI, which
Defendant construes as a wrongful termination claim, is preempted by the Civil Service Reform
Act (“CSRA”). However, the Court will construe the Complaint liberally, and as such, finds that
Counts III, IV, V and VI relate to Plaintiff’s race and age discrimination claims. In that regard,
the Court will construe these counts as factual allegations in support of Plaintiff’s discrimination
claims. To the extent that Count VI can be construed as a state-law wrongful termination claim,
the Court finds that it is preempted by the CSRA. Sarullo v. U.S. Postal Service, 352 F.3d 789,
797 (3d Cir. 2003) (state-law claims in the federal employment context are preempted by CSRA).
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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 plaintiff's to fill the position.” Sarullo, 352 F.3d at 797;
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “The central focus of the prima facie
case is always whether the employer is treating some people less favorably than others because of
their race, color, religion, sex, or national origin.” Sarullo, 352 F.3d at 798 (internal quotations
omitted). Although Plaintiff need not provide the precise kind of disparate treatment to establish a
claim of discrimination, he must “establish some causal nexus between [his] membership in a
protected class and the [alleged discriminatory action].” Id. The requirements to establish a prima
facie case of ADEA discrimination are identical. See Sarullo, 352 F.3d at 797-98.
Here, Plaintiff fails to allege a prima facie case of discrimination. While there is no dispute
that he is a member of a protected class based upon both age and race, Plaintiff alleges no facts in
the Complaint that would raise an inference of discriminatory animus. The only factual allegations
provided by Plaintiff are that he was not promoted, did not receive favorable assignments, did not
receive raises, and ultimately his employment was terminated.

Plaintiff’s allegations of

discrimination consist solely of conclusory assertions that these adverse employment actions were
the result of discrimination based on his race and age. Indeed, Plaintiff has alleged no acts of
disparate treatment of any kind by Defendant. Moreover, Plaintiff has failed to allege any casual
nexus between Plaintiff’s membership in a protected class and the alleged discriminatory actions.
Simply because an individual belongs in a protected class and was terminated does not raise an
inference that the termination was due to discrimination. See Guirguis v. Movers Specialty Servs,
Inc., 346 Fed App’x 774, 776 (3d Cir. 2009) (Allegations that plaintiff is a native of Arab descent
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and discharged of his employment, thus the termination occurred in violation of his civil rights “is
precisely the type of factually unsupported legal conclusion that is inadequate to surmount a Rule
12(b)(6) challenge”). This type of pleading does not meet the Twombly standard. As such, Plaintiff
fails to state a claim with regard to his Title VII and ADEA discrimination claims.
B. Federal Whistleblower Protection
In Count VII of the Complaint, Plaintiff alleges that Defendant terminated his employment
after his disclosure of improper management in a survey to the OPM, in violation of the “law for
whistle blower’s safeguard from adverse action.” Compl., Count VII, ¶ 7. Plaintiff, however, does
not specify the exact cause of action or statutory provision under which he brings his claim. This
alone fails to meet the minimum pleading requirements of Rule 8(a). However, mindful of
Plaintiff’s status as a pro se litigant, the Court nonetheless will attempt to address his claim under
the applicable statute under the alleged circumstances: the Whistleblower Protection Act (“WPA”).
“The WPA protects federal employees against agency reprisal for whistleblowing activities,
such as disclosing illegal conduct, gross mismanagement, gross waste of funds, or acts presenting
substantial dangers to health and safety.” Fleeger v. Principi, 221 Fed. App’x 111, 115 (3d Cir.
2007); see 5 U.S.C. §2302(b)(8). WPA, like the discrimination statutes, requires the exhaustion of
administrative remedies. If the claimant only alleges a WPA claim, he must first seek relief from
the Office of the Special Counsel. 5 U.S.C. § 1214(a)(3). However, if claimant’s claim is a “mixed
case claim” - for example, when the claimant alleges both a WPA claim and a Title VII claim, as is
the case here - the claimant must first seek relief with the EEOC or the Merit Systems Protection
Board (“MSPB”). 5 U.S.C. § 7702.
Here, Plaintiff does not allege in the Complaint that he has pursued any administrative
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remedies specifically regarding his WPA claim. While Plaintiff alleges that he has filed an EEOC
action against Defendant and received a right-to-sue letter, the Court’s examination of all documents
submitted by the parties reveals no evidence that Plaintiff raised a WPA claim with the EEOC.5
Even if Plaintiff’s filings with the EEOC for his discrimination claims contained sufficient factual
allegations to support a WPA claim, Plaintiff must explicitly raise and pursue the WPA claim in his
EEOC filing in order to qualify as an exhaustion of his administrative remedies. Fleeger, 221 Fed.
Appx at 116; see also Atkinson v. LaFayette Coll., 460 F.3d 447, 453 (3d Cir. 2006) (“[T]he
parameters of the civil action in the district court are defined by the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge [filed with the EEOC]”). Thus, the
Court finds that Plaintiff has not exhausted his administrative remedies with regard to his WPA
claim, and therefore, the Court lacks jurisdiction to adjudicate this claim.
Even assuming that the Court had jurisdiction over the claim, Plaintiff has failed to state a
prima facie violation of the WPA. To state a valid claim under § 2302(b)(8), the Complaint must
contain sufficient factual allegations to establish the following four elements: (1) the acting official
has the authority to take, recommend, or approve any personnel action; (2) the aggrieved employee
made a protected disclosure; (3) the acting official used his authority to take, or refuse to take, a
personnel action against the aggrieved employee; and (4) the protected disclosure was a contributing
factor in the agency's personnel action. Chambers v. Dept. of Interior, 602 F.3d 1370, 1376 (Fed.
Cir. 2010).

The statute protects an employee communication (1) that discloses unknown

information, (2) that an employee would reasonably believe is unlawful, and (3) that is outside the

5

The Court may look beyond the pleadings to decide factual questions regarding
subject matter jurisdiction. Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000).
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scope of the employee's normal duties or communicated outside of normal channels. Kahn v. Dept.
of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010). The disclosure should “reveal something that was
hidden and not known.” Id.
In this case, Plaintiff alleges no facts to establish the necessary elements. Plaintiff alleges
that he disclosed improper management on a survey to the OPM, but provides no details of that
disclosure. There is no allegation that the disclosure was unknown information and not Plaintiff’s
personal opinion. There is no allegation that Plaintiff reasonably believed the disclosed information
was unlawful or represented gross management, gross waste, or a substantial danger to public health
or safety. Plaintiff also does not allege how this disclosure was made known to someone who had
the authority to take personnel actions against him, or that the disclosure was a contributing factor
in that person’s personnel action to terminate Plaintiff’s employment. Because Plaintiff does not
provide the nature of the disclosure, the Court has no basis to find that any of the elements are pled
sufficiently. Hence, Plaintiff fails to state a WPA claim.
C. Breach of Contract
Finally, in Count VIII of the Complaint, Plaintiff alleges that he was orally promised by
Defendant a quick promotion during the hiring process and that Defendant breached that promise.
Although not explicitly stated in the Complaint, the Court construes this as a state-law breach of
contract claim.
The CSRA provides a comprehensive statutory scheme which enables federal employees to
obtain remedies in disputes related to the employment relationship between the aggrieved employee
and the federal government. Sarullo, 352 F.3d 789, 794-96. When a federal employee’s state-law
claim falls within the purview of the CSRA, it is preempted by the CSRA and CSRA provides the
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employee with his sole remedy. Id. While the Third Circuit has not decided whether all federal
employment contract claims fall under the CSRA, other courts have held that CSRA preempts such
claims. See Crawford v. U.S. Dept. of Homeland Sec., 245 Fed. App’x 369, 374 (5th Cir. 2007);
Wheeler v. Potter, No. 3:05-CV-265-M, 2007 WL 268777, at *3 (N.D. Tex. Jan. 30, 2007); Black
v. Potter, No. 4:06-899, 2008 WL 509475, at *15 n. 9 (D.S.C. Feb. 21, 2008).
In the instant matter, as alleged, Plaintiff’s breach of contract claim arises out of the
employment relationship he had with the federal government, thus his claim is preempted by the
CSRA and the Court has no jurisdiction over this claim. Even if the Court finds that CSRA does not
preempt Plaintiff’s breach of contract claim, because Plaintiff is seeking damages in excess of
$10,000, the Court of Federal Claims has exclusive jurisdiction over this claim. Indeed, the Court
of Federal Claims has exclusive jurisdiction of all contractual claims against the federal government
over $10,000. Army and Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 734 n. 5 (1982); Burg v.
U.S. Dept. of Health and Human Servs., 387 Fed. App’x 237, 240 (3d Cir. 2010); see 28 U.S.C. §
1491. In sum, the Court lacks jurisdiction over Plaintiff’s contractual claim.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion is GRANTED; Counts I and II of the

Complaint are dismissed without prejudice; all other counts are dismissed. Plaintiff’s motion for
summary judgment is also dismissed as moot. The Court, however, provides Plaintiff the right to
amend the Complaint with respect to Counts I and II within fifteen days from the date of the Order
accompany this Opinion.6
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Plaintiff’s opposition brief raises numerous additional factual allegations
regarding his discrimination claims. However, the Court cannot consider these allegations in
deciding a motion to dismiss. Even if the Court were to consider Plaintiff’s additional factual
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An appropriate Order shall follow.

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge
Date: June 6, 2011

allegations, it cannot discern the nature of Plaintiff’s claims. Instead, the Court provides Plaintiff
the opportunity to amend the Complaint.
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