Walia v. Napolitano
Filing
72
MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 65 Motion for Summary Judgment; It is hereby: ORDERED, that that part of the DHSs motion for partial summary judgment dismissing the Title VII claim is granted and that claim is dismissed with prejudice; and it is further ORDERED, that the part of the DHSs motion to dismiss the Plaintiffs intentional and negligent infliction of emotional distress claim is granted and those claims are dismissed with prejudice; and it is further ORDERED, that the DHSs motion to dismiss the Plaintiffs Privacy Act claim is denied. So Ordered by Judge Arthur D. Spatt on 12/2/13. (Coleman, Laurie)
FILED
CLERK
12/2/2013 10:35 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
SUNIL WALIA,
Plaintiff,
MEMORANDUM OF
DECISION AND ORDER
11-cv-2512 (ADS)(WDW)
-vs.JANET NAPOLITANO, as Secretary of the
United States Department of Homeland
Security,
Defendant.
---------------------------------------------------------X
APPEARANCES:
Law Offices of Louis D. Stober, Jr., LLC
Attorneys for the Plaintiff
350 Old Country Road, Suite 205
Garden City, NY 11530
By: Louis D. Stober, Jr., Esq.
Albina Kataeva, Esq., Of Counsel
Kenneth M. Piken & Associates
Attorneys for the Plaintiff
333 Jericho Turnpike
Suite 218
Jericho, NY 11753
By: Paul Bartels, Esq., Of Counsel
Loretta E. Lynch
United States Attorney Eastern District of New York
Attorney for the Defendant
610 Federal Plaza, 5th Floor
Central Islip, NY 11722-4454
By: Vincent Lipari, Assistant United States Attorney
SPATT, District Judge.
On May 25, 2011, the Plaintiff Sunil Walia (the “Plaintiff”) commenced this action
against the Defendant Janet Napolitano, as the former Secretary of the United States Department
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of Homeland Security (the “DHS”), asserting (1) violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq.; (2) intentional and negligent infliction of emotional distress;
and (3) violations of the federal Privacy Act, 5 U.S.C. § 552a.
Pursuant to Local Rule 50.3.1(a), this case has been deemed related to another case,
Walia v. Holder, et al., 12-cv-45944, which was commenced on December 3, 2012. On
November 18, 2013, that case was reassigned from United States District Judge Sandra L.
Townes to this Court. There was also another case brought by the Plaintiff against a prior
Secretary of the DHS, Michael Chertoff. Walia v. Chertoff, 06-CV-6587 (JBW), 2008 WL
5246014 (E.D.N.Y. Dec. 17, 2008), which settled in December 2008.
In this case, presently pending before the Court is a motion by the DHS (1) for partial
summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56 dismissing
the Title VII cause of action; and (2) to dismiss the emotional distress and Privacy Act claims
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.
For the reasons set forth, the motion is granted in part and denied in part.
I. BACKGROUND
The following facts are drawn from the parties Rule 56.1 statement and the pleadings and
construed in a light most favorable to the Plaintiff. Material disputes are noted.
The Plaintiff has at all times relevant to this action been employed by the DHS as a
Special Agent in the U.S. Immigration Customs Service, Office of Investigations, John F.
Kennedy International Airport Office. The Plaintiff’s race is Asian, his national origin is Indian,
and his religion is Sikhism.
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This litigation arises out of a March 13, 2008 incident involving a stop of an individual
named Juan Bermudez. The parties dispute whether Bermudez was under investigation for child
pornography.
On that date, while returning on an inbound flight at JFK airport, Bermudez was stopped
by Customs and Border Patrol Officer Wilson Olivencia. At some point, the Plaintiff
interviewed Bermudez and the Plaintiff retained, with Bermudez’s written consent, custody of
Bermudez’s computer and CD/DVDs.
However, due to forgetfulness, the Plaintiff kept the computer and CD/DVDs locked in
his bottom desk drawer from March 13, 2008 until October 1, 2008. He did not tell anyone that
he had these items, nor did he make any written entry or open a file indicating that he had them.
In September 2008, Special Agent Robert Raab, through an interview of Bermudez and a
discussion with Olivencia, learned that the Plaintiff had Bermudez’s items. On October 1, 2008,
Raab took custody of the computer and CD/DVDs. Special Agent Christopher Doyle, a Certified
Forensic Analyst, later found child pornography on the computer and CD/DVDs. The Forensic
Analysis Report also revealed that the computer had not been accessed since February 2006.
In October 2008, the Plaintiff received a negative annual performance appraisal, which
referred to, among other things, the March 2008 laptop incident. As a consequence, the Plaintiff
made a formal complaint to the EEO. In December 2008, the parties settled that dispute and the
DHS agreed to “purge” the October 2008 annual performance appraisal from his official
personnel folder.
In the interim, on November 17, 2008, Raab, and his supervisor, Dennis McSweeney,
presented the Bermudez case for prosecution to Eastern District of New York Assistant U.S.
Attorney Judy Philips, Chief of Intake and Arraignment. Philips declined to accept the case,
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apparently because the Plaintiff’s mishandling of the evidence would be “Giglio” material that
the United States would be obligated to disclose to the defense and which would compromise a
prosecution. According to the Plaintiff, McSweeney failed to disclose certain mitigating
circumstances to Philips, including, among other things, that the computer had not been accessed
since February 2006.
By memorandum dated November 24, 2008, McSweeney informed Special Agent InCharge (“SAC”) Peter Smith of the facts and circumstances leading up to the investigation and
declination of prosecution of Bermudez. On January 7, 2009, Smith forwarded a request to the
Office of Professional Responsibility (“OPR”) to investigate the Plaintiff’s handling of the laptop
computer and CD/DVDs retained from Bermudez.
On March 25, 2009, Group Supervisor Juan Figueroa, of the DHS’s San Juan office, was
assigned as a Fact Finder to conduct an administrative inquiry into the allegations contained in
the January 2009 memorandum. Figueroa personally interviewed and obtained affidavits from,
among others, Raab and Olivencia. Following this investigation, on August 11, 2009, Figueroa
concluded:
SA WALIA not only did not examine Bermudez’s computer and or
CDs/DVDs, but took no action to have the property analyzed by qualified
personnel. Furthermore SA WALIA admitted he “forgot” the computers
in his desk, but made misleading statements . . . suggesting that the property
had been examined and no child pornography was found. The allegations of
false statements against SA WALIA is hereby SUBSTANTIATED.
Additionally, this inquiry has revealed that SA WALIA was negligent
and/or careless in the performance of his duties. SA WALIA’S overall
failure to properly manage the examination of Bermudez’s property, had
a negative impact on an official ICE investigation and substantially affected
the prosecution of the case. Consequently, Fact Finder Figueroa hereby
determines that SA WALIA was negligent in performing his duties as a
Senior Criminal Investigator.
(DHS’s Rule 56.1 Statement, Exh B., at 12.)
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By notice dated September 16, 2009, the Plaintiff was placed on paid administrative
leave. The notice explained that “[t]his action is being taken based on an administrative
investigation relating to your handling of a laptop computer that was taken from a passenger at
John F. Kennedy Airport.” (Id., Exh E.) The notice provided that Plaintiff was prohibited “from
entering any and all [DHS] worksites or associated spaces for any purpose without prior appeal.”
(Id.) The notice also stated that the Plaintiff had to relinquish all official government-issued
credentials.
On September 17, 2009, the Plaintiff filed an appeal with the Merit System Protection
Board (“MSPB”). The MSPB ultimately dismissed the Plaintiff’s appeal for lack of jurisdiction.
The Plaintiff also filed a complaint with the Office of Special Counsel (“OSC”).
By notice dated April 29, 2010, the DHS’s Discipline and Adverse Actions Panel
(“DAAP”) proposed as further punishment the Plaintiff’s removal from federal service for failure
to properly safeguard potential evidence and lack of candor. The Plaintiff disputed the
underlying allegations, asserting that the DHS’s actions were taken against him in retaliation for
his previous EEO complaint.
On August 4, 2010, the Plaintiff contacted an EEO counselor to allege discrimination and
retaliation by Smith and two other DHS officials. In his “Informal EEO Complaint,” filed on
August 27, 2010, the Plaintiff alleged thirteen instances of discrimination or retaliation. For
example, the Plaintiff alleged that, during the period between January 2009 and September 2009,
his work assignments were curtailed and limited to cases dealing with counterfeit goods. The
Plaintiff also alleged that, during the period between April 6, 2009 and April 17, 2009, he was
required to attend a training course in investigating commercial fraud. The Plaintiff also asserted
that his placement on administrative leave in September 2009 denied him an opportunity to,
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among other things, work and gain experience; compete for jobs, transfers, and promotions; earn
language pay and a cash award; enter DHS worksites and associated spaces without prior
approval; and come to the office to receive his annual performance appraisal.
Of relevance here, by letter dated November 9, 2010, DHS’s EEO office dismissed as
untimely all of the Plaintiff’s claims that did not arise within the 45 days before the Plaintiff
contacted the EEO counselor on August 4, 2010.
By decision dated November 4, 2010, the DAAP, through Claude Arnold, the SAC of the
DHS’s Los Angeles office, sustained the charges of mishandling potential evidence but not the
charge of lack of candor. Arnold imposed a 14-day suspension, which the Plaintiff served from
November 8-21, 2010.
The Plaintiff subsequently filed a complaint statement with the New York District Office
of the Equal Employment Opportunity Commission (“EEOC”), contending that the harassment
faced by the Plaintiff was of a continuing nature.
On November 22, 2010, the Plaintiff was involuntarily and permanently transferred to the
SAC/NY office.
On February 4, 2011, David Suna, who represented the DHS before the MSPB emailed
SAC James Hayes the following statement: “It is my understanding that the EEO investigator is
interviewing management in the Walia case. Just a reminder I am available to review affidavits.
Feel free to let the relevant managers know or feel free to identify them for me and I can contact
them directly.” (Lipari Decl., Exh F.) This email was later related to “all personnel.”
Thereafter, the Plaintiff filed the instant action. As noted above, the Plaintiff asserts
claims for (1) Title VII violations; (2) intentional and negligent infliction of emotional distress;
(3) Privacy Act violations. Presently pending before the Court is the motion by the DHS for
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partial summary judgment dismissing the Title VII claim and motion to dismiss the second and
third causes of action sounding in intentional and negligent infliction of emotional distress and
the federal Privacy Act.
II. ANALYSIS
A. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
“shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” The
court must view the facts in the light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986). It may disregard unsupported assertions of either party and review the record
independently. See e.g., Palmieri v. Lynch, 392 F.3d 73, 83 (2d Cir. 2004) (finding that plaintiff
“introduced no evidence in opposing summary judgment to rebut the record evidence”).
In a case alleging discrimination, the inquiry is whether the plaintiff's race, color, or
national origin “caused the conduct at issue often requires an assessment of individuals'
motivations and state of mind, matters that call for a sparing use of the summary judgment
device because of juries' special advantages over judges in this area.” Brown v. Henderson, 257
F.3d 246, 251 (2d Cir. 2001) (internal citations and quotation marks omitted). Nonetheless, an
employment discrimination plaintiff faced with a properly supported summary judgment motion
must do more than simply show that there is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co., 475 U.S. at 586. He must present evidence sufficiently precise to
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allow a reasonable jury to find in his favor. See McCarthy v. N.Y. City Technical College, 202
F.3d 161, 167 (2d Cir. 2000).
B. Title VII
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating
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,” 42 U.S.C.
§ 2000e-2(a)(1), and from retaliating against an employee for complaining about such
discrimination. 42 U.S.C. § 2000e-3(a). Title's VII's protections extend to employees of
executive agencies. 42 U.S.C. § 2000e-16.
“Prior to bringing suit under . . . Title VII . . ., a federal government employee must
timely ‘exhaust the administrative remedies at his disposal.’” Belgrave v. Pena, 254 F.3d 384,
386 (2d Cir. 2001) (per curiam) (quoting Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1998)).
“The process a federal employee must take to exhaust his or her administrative remedies is
somewhat different than the process a private sector employee must follow.” Burton v. Am.
Fed'n of Gov't Employees (AFGE) 1988, 11-CV-1416 (SLT)(LB), 2012 WL 3580399, at *6
(E.D.N.Y. Aug. 17, 2012). Federal employees who believe that they have been discriminated
against on the basis of race, color, religion, sex, national origin, age, disability, or genetic
information must consult an EEO Counselor prior to filing a complaint in order to try to
informally resolve the matter. 29 C.F.R. § 1614.105(a). The EEOC regulations require that an
“aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter
alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective
date of the action.” 29 C.F.R. § 1614.105(a)(1).
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In this case, the Plaintiff’s Title VII allegations can be separated into four categories: (1)
alleged wrongful accusation in January 2009 and the OPR investigation in June 2009;
(2) assignment to training for 10 days in March 2009; (3) alleged discriminatory job assignments
from January to September 2009; and (4) Plaintiff’s placement on administrative leave on
September 16, 2009. Each of these allegations fall outside the 45-day time frame prior to the
Plaintiff’s initial contact with the EEO on August 4, 2010.
The Plaintiff first contends that he was not obligated to file an EEO charge for the
previously delineated acts because they were retaliation for and are reasonably related to his
October 2008 complaint filed with the EEO. Thus, the Plaintiff maintains that all of his claims
predating June 20, 2010, 45 days prior to August 4, 2010, are timely as they are reasonably
related to his October 2008 EEO charge.
“Claims not raised in an EEOC [or EEO] complaint . . . may be brought in federal court if
they are ‘reasonably related’ to the claim filed with the agency.” Williams v. N.Y. City Hous.
Auth., 458 F.3d 67, 70 (2d Cir. 2006)(citing Butts v. City of N.Y. Dep't of Hous. Pres. & Dev.,
990 F.2d 1397, 1401 (2d Cir. 1993)). The Second Circuit has identified three specific situations
in which there is “reasonable relation”: if “(1) the [new] claim would fall within the reasonably
expected scope of an EEO[ ] investigation of the charges of discrimination; (2) [the new claim]
alleges retaliation for filing the EEO[ ] charge; or (3) the plaintiff ‘alleges further incidents of
discrimination carried out in precisely the same manner alleged in the EEO[ ] charge.’” Alfano v.
Costello, 294 F.3d 365, 381 (2d Cir. 2002) (quoting Butts, 990 F.2d at 1402–03).
As an initial matter, the Court notes that at no prior point has the Plaintiff alleged or
otherwise contended that his claims predating June 20, 2010 resulted from retaliation for his
filing the 2008 EEO charge. In this regard, there is no mention in the complaint of the October
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2008 EEO charge, let alone that the claims predating June 20, 2010 were taken to retaliate for
filing that charge. Indeed, despite his newly-made claim that he was not obligated to do so, the
Plaintiff in fact attempted to exhaust his claims predating June 20, 2010. In particular,
responding to the EEOC’s November 9, 2010 letter dismissing certain claims as untimely, the
Plaintiff did not then, as he does now, claim that he was under no obligation to exhaust. Rather,
the Plaintiff argued that the claims were timely as part of a continuing violation.
Further, even if the Plaintiff previously alleged that the claims predating June 20, 2010
were based on retaliation for the October 2008 EEO charge, such claims are untimely because
the Court finds that they are not reasonably related to those in the 2008 EEO charge. The 2008
EEO charge alleges that the Plaintiff’s supervisor, Joseph Lestrange, discriminated against the
Plaintiff by: threatening to charge plaintiff with insubordination because he asked for an
explanation of why he was assigned to an out-of-state detail; assigning plaintiff to a detail that
other agents had not been assigned to; counseling plaintiff over release of official information;
ranking him lower than several other agents on a spread sheet; ordering him to attend a training
detail in Washington D.C. while knowing he was scheduled for an interview with the Magistrate
Judge in his last court case; and compromising his safety by not informing him of an OPR and
DEA investigation. (Lipari Reply Decl, Exh A.)
It is true, as the Plaintiff asserts, that he amended the October 2008 EEO charge by letter
dated October 21, 2008 to refer to “misstated” facts in his annual appraisal. While the appraisal
mentioned that the Plaintiff failed to follow up on the seizure of the laptop computer, the EEO
charge and the amendment failed to specify the misstatements of fact. Accordingly, the
Plaintiff’s October 21, 2008 letter did not provide the EEO with sufficient notice that would
make his October 2008 EEO charge reasonably related to the claims predating June 20, 2010.
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Williams v. New York City Housing Authority, 458 F.3d 67, 70 (2d Cir. 2006) (“the focus
should be on the factual allegations made in the [EEOC] charge itself, describing the
discriminatory conduct about which a plaintiff is grieving. The central question is whether the
complaint filed with the EEOC gave that agency adequate notice to investigate . . .”) (citations
and internal quotation marks deleted).
The Plaintiff also contends, as he did before the EEO, that the discriminatory acts
predating June 20, 2010 are part of a hostile work environment or a continuing violation and are
therefore not barred by the 45-day time bar. Assuming that at least one discriminatory or
retaliatory act occurred within the statutory time-period, the continuing violation doctrine
“extends the limitations period for all claims of discriminatory acts committed under an ongoing
policy of discrimination even if those acts, standing alone, would have been barred by the statute
of limitations.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (internal
citations and quotations omitted). The Supreme Court articulated the proper use of the
continuing violation exception in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101,
122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), holding that discrete discriminatory acts, “are not
actionable if time barred, even when they are related to acts alleged in timely filed charges” and
“each discrete discriminatory act starts a new clock for filing charges alleging that act.” 536 U.S.
at 113, 122 S. Ct. 2061. “The rationale behind the ‘discrete act’ rule is that when a plaintiff is
harmed by a discrete act, he should be aware of it; ‘[t]o permit him to wait and toll the running of
the statute simply by asserting that a series of separate wrongs were committed . . . would be to
enable him to defeat the purpose of the time-bar, which is to preclude the resuscitation of stale
claims.’” Stephens v. Hofstra Univ. School of Law, No. 01 Civ. 5388(DRH)(MLO), 2005 WL
11
1505601, at *4 (E.D.N.Y. Jun. 24, 2005) (quoting Singleton v. City of New York, 632 F.2d 185,
192 (2d Cir. 1980)).
It is well-settled that certain adverse employment practices such as undesirable work
transfers and denial of preferred job assignments are discrete acts and cannot be considered as
part of an ongoing pattern or policy of discrimination. See Mix v. Delaware & Hudson Ry. Co.,
345 F.3d 82, 89 (2d Cir. 2003) (citing Morgan, 536 U.S. at 114–15, 122 S. Ct. 2061); Lightfoot
v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (finding job transfer and
discontinuance of a particular job assignment are not acts of a continuing nature); Crosland v.
City of New York, 140 F. Supp. 2d 300, 308 (S.D.N.Y. 2001) (“It is well settled law that
transfers [and] demotions . . . are all discrete acts which do not constitute a continuing
violation.”). In such cases, “each incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable unlawful employment practice.” Morgan,
536 U.S. at 114, 122 S. Ct. 2061.
Similarly, “[p]lacing plaintiff on leave was a discrete act affecting h[is] employment.”
Ramos-Boyce v. Fordham Univ., 419 F. Supp. 2d 469, 472 (S.D.N.Y. 2005). Also time-barred
are the Plaintiff’s assertions that because he was on administrative leave, he was denied the
opportunity to compete for jobs, transfers, and promotions; to acquire on-the-job experience; to
earn language pay and a cash award; and to enter DHS worksites and associated spaces without
prior approval. Harris v. S Huntington Sch. Dist., 2009 U.S. Dist. LEXIS 27392 (DGT), at *27,
2009 WL 875538 (E.D.N.Y. Mar. 30, 2009) (dismissing claims arising out of, among other
things, the defendants' discrete act of “reassigning [plaintiff] to work the night shift ... effectively
denying him the opportunity to work overtime” as untimely). Indeed, these issues were “a direct
12
result of his suspension with pay, not an additional action taken by his employer.” Brown v. City
of Syracuse, 673 F.3d 141, 151 (2d Cir. 2012).
In addition, the Court finds that the allegation regarding the compulsory training is timebarred because a requirement to train is a discrete act. Perkins v. Promoworks, L.L.C., CIV.A. H11-442, 2012 WL 6530137, at *6 (S.D. Tex. Nov. 26, 2012)(“Plaintiff has identified only
discrete acts as the discriminatory employment actions from which her complaint is derived
[such as] requiring her to train non-black coworkers.”), report and recommendation adopted,
CIV.A. H-11-442, 2012 WL 6530103 (S.D. Tex. Dec. 13, 2012).
Also, the Court finds that the Plaintiff’s allegation regarding his placement on
administrative leave is not timely, even though the Plaintiff remained on administrative leave
after he filed his EEO complaint. Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 135 (2d
Cir. 2003)(“The rejection of a proposed accommodation is a single completed action when taken
. . . [a]lthough the effect of the employer's rejection continues to be felt by the employee for as
long as he remains employed.”); Guerrero v. FJC Sec. Servs. Inc., 10 CIV. 9027 (JPO), 2012 WL
2053535, at *3 (S.D.N.Y. June 5, 2012)(“Though Plaintiff continued thereafter to feel the effects
of this assignment, the assignment occurred in May 2009. To complain of this assignment in
federal court, Plaintiff had first to complain of the assignment in an EEOC charge within 300
days.”)
Indeed, in a similar case to the case at bar, this Court stated:
Here, the Plaintiff alleges that the Defendant retaliated against her immediately
upon her return to work in January of 2002 by placing her on the second floor,
which was in violation of the 2001 settlement agreement, and which exposed her
to harmful toxins. These allegations of undesirable work transfers constitute
discrete acts that are not actionable under the continuing violation doctrine.
Nevertheless, the Plaintiff contends these actions fall within the continuing
violation doctrine because every day that she remained employed and was not
placed on the third floor in compliance with the 2001 settlement agreement
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constituted retaliation. However, a failure to remedy a discrete act of retaliation,
which is a one-time event, does not rise to the level of a discriminatory policy or
practice. As the Supreme Court held in Morgan, the “mere continuity of
employment, without more, is insufficient to prolong the life of a cause of action
for employment discrimination.”
Robles v. Cox & Co., Inc., 841 F. Supp. 2d 615, 628 (E.D.N.Y. 2012)(Spatt, J.)(citation
omitted).
The Plaintiff also contends that, pursuant to 29 C.F.R. § 1614.302, by filing an “appeal”
with MSPB on September 17, 2009, he is deemed to have made an initial contact with an EEO
counselor on that date and, thus, his claims of retaliation for being placed on indefinite
administrative leave are timely. The Court disagrees.
A federal employee may accomplish administrative exhaustion of his Title VII claim by
either filing a complaint with the agency's Equal Employment Opportunity office or by
administratively filing a “mixed case appeal,” which includes both discrimination and nondiscrimination claims, directly with the MSPB. Butler v. West, 164 F.3d 634, 638 & n. 6 (D.C.
Cir. 1999). The plaintiff argues that he exhausted his administrative remedies through the latter
route.
Under 5 U.S.C. § 7702, a mixed case is one in which the employee “has been affected by
an action which the employee . . . may appeal to the [MSPB], and alleges that a basis for the
action was discrimination prohibited by” Title VII, among other statutes. § 7702(a)(1). An
employee may appeal only five types of employment actions directly to the MSPB: (1) removal,
(2) suspension for more than fourteen days, (3) reduction in grade, (4) reduction in pay, and (5) a
furlough of thirty days or less. § 7512. Thus, in order to bring a mixed case appeal before the
MSPB, and thus to exhaust his administrative remedies through a mixed case appeal, a plaintiff
must allege that the defendant has taken one of the five designated actions against him and that
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“a basis for the action was discrimination” in violation of Title VII. See Cruz v. Dep't of the
Navy, 934 F.2d 1240, 1243-46 (Fed. Cir. 1991) (en banc); Dews–Miller v. Clinton, 707 F. Supp.
2d 28, 44–45 (D.D.C. 2010); Greenhouse v. Geren, 574 F. Supp. 2d 57, 65–67 (D.D.C. 2008);
Marren v. DOJ, 51 M.S.P.R. 632, 638–40 (1991), aff'd, 980 F.2d 745 (Fed. Cir. 1992). “As far
as the Court can discern from the convoluted allegations in his complaint, none of these
enumerated employment actions have been taken against the plaintiff. Consequently, the
[P]laintiff has not properly filed a mixed case appeal with the MSPB, and therefore, has not
exhausted his Title VII administrative remedies.” Abou-Hussein v. Mabus, CIV.A. 12-0913
RBW, 2013 WL 3753553, at *5 (D.D.C. July 17, 2013).
The Plaintiff also argues that he was not required to contact an EEO counselor because
his MSPB appeal placed David Suna, who represented the DHS before the MSPB, on notice of
his EEO claims. “The EEOC has held that in order to “initiate contact” an employee must (1)
contact an agency official logically connected with the EEO process, even if that official is not
an EEO counselor; (2) exhibit an intent to initiate the EEO process; and (3) allege that an
incident in question is based on discrimination.” Lewis v. Snow, 01 CIV. 7785 (CBM), 2003 WL
22077457, at *6 (S.D.N.Y. Sept. 8, 2003).
Here, even if Suna was logically connected to the EEO process, the Plaintiff’s MSPB
appeal did not evince his intent to initiate EEO proceedings. To the contrary, because a person
filing a “mixed case appeal” must elect between MSPB proceedings or EEO proceedings, 29
C.F.R. § 1614.302(b), the Plaintiff’s filing was notice that he did not intend to initiate EEO
proceedings. See e.g., White v. Geithner, 602 F. Supp. 2d 35, 37 (D.D.C. 2009) (“[plaintiff]
knew the mediation process and the EEO process were different and she knew she was electing
to pursue mediation rather than the EEO process. Therefore, the uncontroverted evidence does
15
not support White's assertion that she intended to begin the EEO process during her meeting with
Cymbor.”).
Finally, the Plaintiff suggests that his filing with the Office of Special Counsel satisfied
the requirement of initiating contact with an EEO counselor. However, “a complainant's contact
with the OSC does not toll the 45-day time limit for contacting an EEO Counselor.” David L.
Wadley, Complainant, EEOC DOC 0520120552, 2013 WL 393651, at *2 (Jan. 15, 2013);
Schmidt v. Dep't of the Army, EEOC Appeal No. 0120110320 (Feb. 25, 2011); Sofair v. Dep't of
the Navy, 0120092486 (Sept. 24, 2009); Wilson v. Dep't of Hous. & Urban Dev., EEOC Appeal
No. 01A55956 (Mar. 10, 2006); Steinert v. Dep't of Veterans Affairs, EEOC Request No.
05960535 (Oct. 9, 1997).
In sum, the Court finds that, as a matter of law, the Plaintiff failed to timely exhaust his
administrative remedies as a prerequisite to his Title VII claim. Accordingly, the Court grants
the DHS’s motion for partial summary judgment dismissing that cause of action.
C. Motion to Dismiss Standard
In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
the Court must accept the factual allegations set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enterprises, 448 F.3d
518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005);
Rosen v. North Shore Towers Apts., Inc., 2011 WL 2550733, *2 (E.D.N.Y. June 27, 201 l)
(12(b)(l)). To survive a motion to dismiss pursuant to Rule 12, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “[O]nce a
claim has been stated adequately, it may be supported by showing any set of facts consistent with
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the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007). Therefore, the Court does not require “heightened fact pleading
of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at
570. However, a pleading that offers only ‘labels and conclusions' or a ‘formulaic recitation of
the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.” Id. (quoting Twombly, 550 U.S. at 557). Thus, while detailed factual
allegations are not required, the pleading rules do require more than an “unadorned, thedefendant-unlawfully-harmed-me accusation.” Twombly, 550 U.S. at 555 (internal citations
omitted).
The Supreme Court clarified the appropriate pleading standard in Iqbal, setting forth a
two-pronged approach for courts deciding a motion to dismiss. District courts are to first
“identify [ ] pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Though “legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. Second, if a
complaint contains “well-pleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. at 678 (quoting and citing Twombly, 550 U.S. at 556)
(internal citations omitted).
17
D. Intentional and Negligent Infliction of Emotional Distress
As noted above, the Plaintiff also alleges a claim for intentional and negligent infliction
of emotional distress. However, “[c]ourts have refused to permit the invocation of state law
remedies to circumvent the exclusivity of Title VII as a remedy for discrimination in federal
employment.” Lewis v. Snow, No. 01 Civ. 7785, 2003 WL 22077457 (CBM), at *11 (S.D.N.Y.
Sept.8, 2003) (citations omitted); Spinelli v. Sec'y of Dep't of Interior, No. 99–CV–8163, 2006
WL 2990482, at *9–10 (E.D.N.Y. Oct.19, 2006) (“[P]ermitting federal employees to invoke state
law remedies for claims of employment discrimination would work an impermissible end-run
around Title VII's administrative requirements . . . . Here, plaintiffs attempt such an ‘end-run’
around Title VII: plaintiffs' state law tort claims derive solely from the alleged workplace
discrimination underlying their federal law claims.” )(internal quotation marks and citations
omitted); cf. Bolden v. Potter, CIV3:07CV785 (AWT), 2010 WL 1286756, at *11 (D. Conn.
Mar. 29, 2010) (“[The Plaintiff]’s intentional infliction of emotional distress claim is not a claim
of discrimination, and so it is not duplicative of her Title VII claim.”).
The Plaintiff insists that he does not allege the same factual basis for these state law
claims as he does for his employment discrimination claim. In this regard, in his memorandum
in opposition to the motion to dismiss, the Plaintiff asserts that “the record” makes clear that the
DHS intentionally and negligently inflicted emotional distress on him by failing to promptly
render a decision on DAAP’s recommendation of removal. The Plaintiff points to the testimony
of SAC Arnold, who apparently assured the Defendant that he would take 14 days to make a
decision. Instead of taking 14 days to make a decision, the DHS took 110 days. The Plaintiff
asserts that, as a result, he suffered extreme deep sleep deprivation, physical neck and back pain,
18
and extreme anxiety and stress. Based on these allegations, the Plaintiff asserts that “a question
of fact” remains as to this cause of action.
However, because “the court is limited to the pleadings in reviewing a motion to dismiss
under Fed. R. Civ. P. 12(b)(6),” Knight v. S. New England Tel. Corp., 3:97CV1159 (WWE),
1998 WL 696014, at *5 (D. Conn. Sept. 18, 1998), the Plaintiff’s reliance on the record and in
particular – Arnold’s deposition testimony – is inapposite. Count II of the complaint provides, in
its entirety:
133. Plaintiff repeats and realleges each and every allegation set forth in
paragraphs 1-127 inclusive as if fully set forth herein.
134. The actions alleged in paragraphs 1-127 above constitute the
intentional and negligent infliction of emotional distress upon the
Plaintiff.
As these generalized allegations reveal, the Plaintiff’s claim of intentional and negligent
infliction of emotional distress is part and parcel of his prior allegations of discrimination.
In the Court’s view, the Plaintiff failed to put the DHS on notice of any claim that the delay in
DAAP decision aggrieved the Plaintiff. Further, given that the Plaintiff’s injuries were within
his own knowledge and control, the Plaintiff “cannot amend [his] complaint by asserting new
facts or theories for the first time in opposition to Defendants' motion to dismiss.” K.D. ex rel.
Duncan v. White Plains School Dist., No.11 CIV.6756 (ER), 2013 WL 440556, at *14 n. 8
(S.D.N.Y. Feb. 5, 2013) (citing Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812
F. Supp. 2d 357, 363 n. 9 (S.D.N.Y. 2011); Scott v. City of New York Dep't of Corr., 641 F.
Supp. 2d 211, 229 (S.D.N.Y. 2009), aff'd, 445 F. App'x 389 (2d Cir. 2011)).
In any event, even if the Court was to convert the motion to dismiss the emotional
distress claim sua sponte to a motion for partial summary judgment and to consider matters
outside the pleadings or even had the Plaintiff alleged in the complaint that the delay in the
19
DAAP’s recommendation of removal constituted intentional and negligent infliction of
emotional distress as separate from his employment discrimination claim, the Court finds that the
Plaintiff failed to exhaust his administrative remedies as required under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 1346 because he did not file his administrative claim with the DHS
within the two-year limitation period set forth in 28 U.S.C. § 2401(b).
This “presentment” requirement is contained in 28 U.S.C. § 2675(a), which is designed
“to provide a procedure under which the government may investigate, evaluate, and consider
settlement of a claim.” Johnson by Johnson v. United States, 788 F.2d 845, 848 (2d Cir. 1986)
(quoting Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983)); overruled on other
grounds by Sheridan v. United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988).
Therefore, in order to satisfy § 2675(a)'s presentment requirement, the claimant must file a notice
of claim that provides “enough information to permit the agency to conduct an investigation and
to estimate the claim's worth.” Romulus v. United States (Romulus II ), 160 F.3d 131, 132 (2d
Cir. 1998) (citing Keene Corp., 700 F.2d at 842), aff'g Romulus v. United States (Romulus I ),
983 F. Supp. 336, 338 (E.D.N.Y. 1997). The notice need not meet formal pleading requirements
as long as it is specific enough to serve the purposes underlying § 2675(a) – “to ease court
congestion and avoid unnecessary litigation while making it possible for the Government to
expedite the fair settlement of tort claims” asserted against the United States. Romulus I, 983 F.
Supp. at 338 (quoting Johnson by Johnson, 788 F.2d at 848–49). A claimant must provide “more
than conclusory statements which afford the agency involved no reasonable opportunity to
investigate.” Romulus II, 160 F.3d at 132. Although compliance with § 2675(a) is “strictly
construed,” Furman v. U.S. Postal Serv., 349 F. Supp. 2d 553, 557 (E.D.N.Y. 2004) (quoting
Romulus I, 983 F. Supp. at 338), plaintiff need only “provide notice of his claim and a sum
20
certain,” and need not “provide full substantiation of his claim according to the more exacting
settlement regulations.” State Farm, 326 F. Supp. 2d at 414.
Further, the FTCA administrative exhaustion rule is a jurisdictional requirement which
cannot be waived. See Millares v. United States, 137 F.3d 715, 720 (2d Cir. 1998); Morales v.
United States, 38 F.3d 659, 660 (2d Cir. 1994); Keene Corp. v. United States, 700 F.2d 836, 841
(2d Cir. 1983) cert. den. 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983).
Here, the Plaintiff submitted an SP-95 Form to the DHS on May 24, 2011. While the
claim form directs claimants to “[s]tate in detail the known facts and circumstances attending the
damage, injury, or death, identifying persons and property involved, the place of occurrence and
the cause thereof” (emphasis added), the Plaintiff’s claim only stated “I am employed by DHS.
DHS intentionally engaged in harassment, retaliation and discrimination causing damage and
injury.” (Lipari Reply Decl., Exh C.)
In any case, the mere filing of a Form 95 is not necessarily sufficient to satisfy
presentment. Romulus II, 160 F.3d at 132 (“[T]he mere act of filing a SF 95 does not necessarily
fulfill the presentment requirement of § 2675(a).”); Romulus I, 983 F. Supp. at 341 (“Although
plaintiffs apparently assume that filing of a Form 95 is sufficient ... the case law is not settled on
this point.”); see also Furman, 349 F. Supp. 2d at 558 (quoting Romulus II, 160 F.3d at 132).
Rather, presentment requires the claimant to present evidence sufficient to allow the agency to
investigate and evaluate the claim with an eye toward determining whether to settle the claim or
deny it. Romulus II, 160 F.3d at 132; Johnson by Johnson, 788 F.2d at 848–49. The sufficiency
of the claimant's notice depends on the information he provides, and different information will be
required to satisfy presentment based on the facts of each case. See State Farm, 326 F. Supp. 2d
at 412–13 (“[T]he adequacy of notice to an agency is dependent upon the sufficiency of
21
information provided by the plaintiff. Sometimes, if the information is vague, or suggestive of a
vast array of possible claims, the information provided by the plaintiff gives no notice to the
agency.”)
The “Plaintiff may well have suffered emotional distress stemming from employment
discrimination, but the exclusivity of Title VII and the failure to present any tort claims to the
[DHS] require h[im] to pursue relief through [other avenues].” Cole-Hoover v. Shinseki, 10-CV669A, 2011 WL 1793256, at *3 (W.D.N.Y. May 9, 2011). Accordingly, the Court grants the
Defendants' Rule 12(b)(6) motion with respect to the common law claims for intentional and
negligent infliction of emotional distress.
E. Privacy Act
Finally, the Plaintiff claims a violation of the Privacy Act, 5 U.S.C. § 552a. In particular,
the Plaintiff alleges that the Defendants violated the Privacy Act because, “[u]pon information
and belief, on or about February 14, 2011 . . . . [defendant] advised personnel who had ‘no need
to know’ about [the Plaintiff’s] EEO activity.” Compl. ¶ 127. The personnel allegedly advised
were “individuals in the New York/JFK duty station without written or verbal permission of [the]
Plaintiff.” Id. ¶ 136.
Under the Privacy Act, “[n]o agency shall disclose any record which is contained in a
system of records by any means of communication to any person, or to another agency, except
pursuant to a written request by, or with the prior written consent of, the individual to whom the
record pertains.” 5 U.S.C. § 552a(b). A “‘record’ has a broad meaning encompassing, at the very
least, any personal information about an individual that is linked to that individual through an
identifying particular.” Rivera, 400 F. Supp. 2d at 409.
22
Properly framed and contrary to the DHS’s contention, “the emails in this case are the
method of disclosure, not the source of the Privacy Act protected material.” Minshew v. Donley,
911 F. Supp. 2d 1043, 1071 (D. Nev. 2012). Rather, the source of the alleged Privacy Act
material was the DHS’s information contained in employment/personnel files – namely, the
Plaintiff’s EEO activity. Given the broad definition of the term “record” under the Privacy Act,
the Court finds that this information may qualify as “records” because they identify the Plaintiff
by name and contain information about a prospective investigation premised on the Plaintiff’s
alleged misconduct.
However, only “records” retrieved from “systems of records” are subject to the Privacy
Act. A “system of records” is “a group of any records under the control of any agency from
which information is retrieved by the name of the individual or by some identifying number,
symbol, or other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5). Thus,
to be covered by the Privacy Act, a record must actually be retrieved from a system of records by
using a personal identifier. Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1460–61 (D.C. Cir.
1996) (retrieval capability is not sufficient to create a system of records; to be in a system of
records, a record must in practice be retrieved by an individual's name or other personal
identifier).
In this case, the Court finds that the DHS’s personnel records may qualify as a “system of
records” within the meaning of the Privacy Act. Parks v. United States Internal Revenue Service,
618 F.2d 677, 682-83 (10th Cir. 1980) (fact that personnel files are systems of record” was
uncontroverted); Howard v. Marsh, 596 F. Supp. 1107, 1110 (E.D. Mo. 1984) (“Many of the
documents incorporated in management's rebuttal memorandum were contained in plaintiff's
personnel file and the EEO files maintained by defendant. Clearly, these documents were name
23
retrievable and thus were within a “system of records” maintained by defendant), rev'd on other
grounds, 785 F.2d 645 (8th Cir. 1986); Jackson v. Veterans Admin., 503 F. Supp. 653, 655 (N.D.
Ill. 1980)(the “defendant concedes that the plaintiff's personnel file (‘OPF’) is such a system of
records within the meaning of the Privacy Act”).
To be sure, exemptions from liability under the Privacy Act include intra-agency
disclosures among employees “who have a need for the record in the performance of their
duties.” Id. § 552a(b)(1); Williams v. Reilly, 743 F. Supp. 168, 175 (S.D.N.Y. 1990); Clarkson
v. Internal Revenue Serv., 811 F.2d 1396, 1398 (11th Cir. 1987)(intra-agency disclosure “is not
the evil against which the Privacy Act was enacted.”) In considering a disclosure under this
exception, “[w]hat must be determined . . . is whether the official examined the record in
connection with the performance of duties assigned to him and whether he had to do so in order
to perform those duties properly.” Doe v. U.S. Dep't of Justice, 660 F. Supp. 2d 31, 44–46
(D.D.C. 2009); see e.g., Viotti v. U.S. Air Force, 902 F. Supp. 1331, 1337 (D. Colo. 1995)
(holding that the disclosure of information about acting head of political science department to
“political science department staff” not improper “as a matter of law” under need to know
exception).
Here, the Plaintiff adequately alleges that the disclosure regarding his EEO complaint
was not on a “need to know” basis for the employees to perform their duties. (Compl., at ¶ 127.)
Indeed, the Court notes that discovery has revealed that the emails were sent to several
individuals who were encouraged to share it without restriction, though such a showing is not
required to withstand a motion to dismiss. Accordingly, the Court denies the DHS’s motion to
dismiss the Plaintiff’s Privacy Act claim.
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III. CONCLUSION
For the foregoing reasons, it is hereby:
ORDERED, that that part of the DHS’s motion for partial summary judgment dismissing
the Title VII claim is granted and that claim is dismissed with prejudice; and it is further
ORDERED, that the part of the DHS’s motion to dismiss the Plaintiff’s intentional and
negligent infliction of emotional distress claim is granted and those claims are dismissed
with prejudice; and it is further
ORDERED, that the DHS’s motion to dismiss the Plaintiff’s Privacy Act claim is
denied.
SO ORDERED.
Dated: Central Islip, New York
December 2, 2013
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Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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