Kelly v. U.S. Department of Homeland Security et al

Filing 16

MEMORANDUM AND ORDER Re: 7 Motion to Dismiss filed by U.S. Department of Homeland Security, Steve Sheridan. Defendants' motion to dismiss complaint is denied in part and granted in part. All claims against defendant U.S. Department of Homeland Security remain; all claims against defendant Steve Sheridan in his professional and personal capacities are dismissed. So Ordered by Senior Judge Ronald R. Lagueux on 3/19/14. (Cavaco, Janice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
MICHAEL KELLY,
Plaintiff,
v.

C.A. No. 12-929L

U.S. DEPARTMENT OF HOMELAND
SECURITY by and through the
Secretary of Homeland Security,
JEH JOHNSON,1 and STEVE SHERIDAN
in his professional and personal
capacities,
Defendants.
MEMORANDUM AND ORDER
Ronald R. Lagueux, Senior United States District Judge.
This matter is before the Court on the motion of Defendants
to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P.
12(b)(6).

Plaintiff, a former employee of the federal

Transportation Security Administration (“TSA”), alleges that he
was sexually harassed by his TSA supervisor, and that, after he
complained about her conduct, he was subjected to a retaliatory
constructive discharge from his employment.

Defendants assert

that Plaintiff has failed to exhaust his administrative remedies,
as required by 42 U.S.C. § 2000e-5 and 29 C.F.R. §
1614.105(a)(1), and that, consequently, his claims here are timebarred and must be dismissed.
1

As explained below, the Court

Since the filing of this Complaint, prior Secretary of
Homeland Security Janet Napolitano has resigned. The Court makes
this substitution pursuant to Fed. R. Civ. P. 25(d).

denies Defendants’ motion to dismiss in part, holding that
Plaintiff’s Complaint contains factual allegations sufficient to
state a case for which relief may be granted against his
employer.

The Court grants the motion to dismiss all claims

against Defendant Steve Sheridan in his personal and professional
capacities.
Background
The background facts, according to Plaintiff, are as
follows.

Plaintiff started working for the TSA in 2002.

In

2007, he was promoted to the position of Transportation Security
Officer.

The following year, he began working on a team with

supervisor Melissa Comfort.

Although she was married, Comfort

allegedly immediately starting flirting with Plaintiff.
According to Plaintiff, Comfort arranged her schedule so that she
could walk back and forth to the parking lot with him before and
after work. On several occasions, Comfort suggested that they
have sex in the back of her van.

In addition, she made sexually

suggestive comments to him at work, and while on break.

Comfort

received a promotion in 2009, but remained Plaintiff’s
supervisor.
In 2010, Comfort planned to attend a week-long training
session in Wisconsin.

Comfort invited Plaintiff to accompany her

so that they could spend the week together.

Although Plaintiff

refused this and the other invitations, nevertheless, one day

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Comfort tried to kiss him on their way back to the parking lot.
When Plaintiff rebuffed her advance, Comfort expressed her
frustration with him and instructed him to stop turning her down.
The following fall, Comfort completed Plaintiff’s employment
evaluation.

Although his evaluation was positive, it was not as

good as it had been the year before (when completed by a
different supervisor), despite the fact that Plaintiff was
certain his performance had not deteriorated.

This less-than-

stellar evaluation resulted in a smaller raise than the prior
year, as well as a diminished bonus.

After receiving the

evaluation, Plaintiff decided to speak with an administrative
officer about the situation with Comfort.
On October 5, 2010, Plaintiff met with TSA administrative
officer Defendant Steve Sheridan, who responded that he was aware
of Comfort’s conduct.

On October 8, Plaintiff filed a written

Incident Report with Comfort’s supervisor, Michael Candeias.

The

Report outlined Comfort’s unwelcome sexual advances and stated
that her conduct had created “a stressful, uncomfortable and
intimidating work environment.”

A few days later, Candeias met

with Plaintiff and told him that Sheridan had warned that Comfort
might be fired unless Plaintiff altered his Incident Report.
Candeias encouraged Plaintiff to rewrite his Report and include
fewer details.

On October 15, 2010, Plaintiff filed a revised

Incident Report.

Candeias then reassigned Plaintiff to another

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team where he no longer had to work with Comfort.

From this

point forward, Comfort avoided Plaintiff in the workplace.
Six weeks later, on November 30, 2010, Plaintiff was called
in to meet with two TSA investigators who accused him of posting
sensitive information about TSA procedures on a public website.
Plaintiff denies this charge.

On February 6, 2011, Plaintiff met

again with one of the investigators and with Steve Sheridan, at
which time Plaintiff was questioned for three hours.

At this

meeting, Sheridan told Plaintiff that, if he did not resign, he
would be criminally prosecuted for the internet posting.
Sheridan also asked Plaintiff to withdraw his Incident Report
concerning Comfort’s sexual harassment.

Plaintiff then resigned

under duress.
Plaintiff filed this Complaint in December 2012.

He states

three separate violations of Title VII of the Civil Rights Act2
and 42 U.S.C. § 1981: 1) quid pro quo sexual harassment; 2)
hostile work environment sexual harassment; and 3) retaliation.
In addition to front pay, back pay, consequential damages and
punitive damages, Plaintiff also seeks reinstatement and other
equitable relief.

In his memorandum of law objecting to

Defendants’ motion to dismiss, Plaintiff concedes that all his
claims pursuant to 42 U.S.C. § 1981 are inapt and should be
withdrawn.

2

Additionally, Plaintiff has withdrawn the portion of

42 U.S.C. §§ 2000e-16(a).
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his claims against Defendant Steve Sheridan which charge Sheridan
in his personal capacity.
Standard of Review
Defendants move to dismiss the claims against them pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim upon which relief may be granted.

In

considering a Rule 12(b)(6) motion, a court must accept as true
all allegations in the complaint and draw all reasonable
inferences in the plaintiff’s favor.
F.3d 1, 3 (1st Cir. 1996).

Aulson v. Blanchard, 83

The United States Supreme Court more

recently stated the standard as follows: “[O]nce a claim has been
stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 562 (2007).

Bell

Since

Twombly, the Supreme Court has further refined its requirements
in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009):
To survive a motion to dismiss, a
complaint must contain sufficient factual
matter, accepted as true to state a claim to
relief that is plausible on its face. 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.
(Internal citations and quotations omitted).

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On a motion to dismiss, a court usually does not consider
documents outside of the complaint, unless the motion is
converted into a summary judgment motion.

Alternative Energy,

Inc. v. St. Paul Fire & Marine Ins. Co.,

267 F.3d 30, 33 (1st

Cir. 2001).

In this case, Defendants urge the Court to consider

several internal Homeland Security documents.

The Court has

determined that review of these documents is not appropriate at
this juncture, as these documents do not fall into any of the
permissible exceptions for the consideration of documents beyond
the pleadings.

See Watterson v. Page,

987 F.2d 1, 3 (1st Cir.

1993).
Analysis
Defendants argue that Plaintiff’s claims must be dismissed
because he failed to report his claims to an Equal Employment
Opportunity (“EEO”) counselor within the time frame required by
federal regulations.

The time-frame presently set forth at 29

C.F.R. § 1614.105(a)(1) is 45 days from discriminatory conduct to
contact with the EEO counselor.
Jurisdiction
Defendants also argue that, because Plaintiff failed to
properly exhaust his administrative remedies, this Court lacks
subject matter jurisdiction to hear his complaint.
argument is wholly wrong.

This second

The Supreme Court has clearly

established that the 45-day time period is not a jurisdictional
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prerequisite and, as such, is subject to equitable tolling,
waiver and estoppel.

Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 393 (1982); McKinnon v. Kwong Wah Restaurant, 83 F.3d
498, 504 (1st Cir. 1996).
Equitable tolling
It is just such an equitable exception that Plaintiff urges
the Court to consider in order to allow his claims to go forward.
Extension of the time bar is contemplated by the governing
federal regulation which states in part that the EEO Commission
may extend the 45-day limit in certain instances, such as:
...when the individual shows that he or she
was not notified of the time limits and was
not otherwise aware of them, that he or she
did not know and reasonably should have been
known [sic] that the discriminatory matter or
personnel action occurred, that despite due
diligence he or she was prevented by
circumstances beyond his or her control from
contacting the counselor within the time
limits, or for other reasons considered
sufficient by the agency or Commission.
29 C.F.R. § 1614.105(a)(2).
Plaintiff asserts in his Complaint that TSA supervisors
Candeais and Sheridan were connected to the EEO counseling and
complaint process, and that, as a result, his complaints about
Comfort constitute contact with an EEO counselor.

Furthermore,

in his memorandum of law, Plaintiff states that neither Sheridan
or Candeias advised him of his EEO rights or of the reporting
deadline, nor did they refer him to an EEO counselor.
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In fact,

both men discouraged Plaintiff from pursuing a course of action
that might have resulted in disciplinary action against Melissa
Comfort.
The grounds provided by Plaintiff in favor of equitable
tolling of the time limit for his claims are ones that have been
accepted by courts in other cases.

For example, Briggs v.

Henderson, 34 F.Supp.2d 785 (D. Conn. 1999), the Connecticut
District Court denied a motion to dismiss the claims of a postal
worker who complained of sexual harassment to supervisors and
others, but did not meet with an EEO counselor.

The Court held

that “the EEOC has consistently held that if an employee contacts
management officials within 45 days of the last alleged
discriminatory event, the contact will be considered timely under
section 1614.105(a)(1).”

Id. at 787.

See also Culpepper v.

Schafer, 548 F.3d 1119, 1124 (8th Cir. 2008).

An employer’s

failure to inform employees of EEO procedures and time limits can
also serve as the basis for equitable tolling.

See Earnhardt v.

Commonwealth of Puerto Rico, 691 F.2d 69, 73 (1st Cir. 1982).
It is undisputed that Plaintiff first met with Sheridan on
October 5, 2010, soon after receiving his disappointing
employment evaluation from Comfort in September 2010.

Sheridan

referred Plaintiff up the reporting chain to Michael Candeias.
Plaintiff’s intent to formalize his complaint is demonstrated by
his preparation of a written report for Candeias on October 8,

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and the filing of his revised report on October 15.

According to

Plaintiff, neither of these supervisors provided him with any
information about EEO procedures.

Plaintiff’s assertions state a

claim for equitable tolling that is plausible on its face.
Defendants deny that Sheridan and Candeias were sufficiently
connected to the EEO complaint process for Plaintiff’s meetings
to constitute initial contact with an EEO counselor; and they
argue that Plaintiff was informed of the EEOC requirements.
However, factual disputes such as these are not properly resolved
at the motion-to-dismiss stage of the litigation.

See Williams-

Jones v. LaHood, 656 F.Supp.2d 63, 67 (D.D.C. 2009) (“Rather, the
court should grant a motion to dismiss only if the complaint on
its face is conclusively time-barred.”)

Moreover, Plaintiff’s

failure to exhaust his administrative remedies is an affirmative
defense, meaning Defendants bear the burden of proving it.
at 66.

Id.

Since factors in the equitable-tolling analysis include

Plaintiff’s knowledge, state of mind and intent at the time he
met with Sheridan and Candeias, Defendants are up against an
insurmountable obstacle to securing a judgment in their favor
based only upon the allegations in the Complaint.

Consequently,

the Court denies Defendants’ motion to dismiss Counts I and II of
the Complaint.
Retaliation
As for Count III, Defendants argue that 45-day time limit

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also applies to Plaintiff’s retaliation claim; i.e., that the 45day clock started to run again at the time of his discharge, and
that Count III is consequently time-barred.

It is undisputed

that Plaintiff failed to contact an EEO counselor within 45 days
of his alleged constructive discharge.
Circuit, faced with

However, the First

similar factual circumstances, considered

the issue and concluded:
On balance, we think the cleanest rule is
this: retaliation claims are preserved so
long as the retaliation is reasonably related
to and grows out of the discrimination
complained of to the agency – e.g., the
retaliation is for filing the agency
complaint itself.
Clockedile v. New Hampshire Dept. of Corrections, 245 F.3d 1, 6
(1st Cir. 2001).

The Clockedile Court announced this rule after

determining that most circuits allowed retaliation claims to be
made in court even though prior complaints to the agency only
included claims of discrimination, id. at 4, and further
determining that “[a] plurality of circuits – including the
Second, Fourth, Seventh, Eighth, Ninth and Tenth – have said that
the complainant may assert other claims ‘reasonably related’ to
those alleged in the agency charge.”

Id. at 5.

After finding

that its ruling was consistent with those of the other circuits,
the Court fleshed out its decision with a public policy
justification:
The result, at least as to retaliation,
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can be justified in policy terms.
Retaliation uniquely chills remedies; and by
retaliating against an initial administrative
charge, the employer discourages the employee
from adding a new claim of retaliation.
Id. at 5.
In the present case, Plaintiff establishes a reasonable
relationship between his harassment complaint and his
constructive discharge when he alleges that Steve Sheridan asked
him to withdraw his written Incident Report concerning Melissa
Comfort during the course of his three-hour interrogation about
the internet security leak.

This allegation is sufficient to

permit Count III to pass through the Defendants’ motion-todismiss wicket.
Steve Sheridan
Plaintiff has conceded that he cannot maintain a proper
claim against Defendant Steve Sheridan in his personal capacity.
In fact, no claim at all against Sheridan, personally or
professionally, may be maintained under Title VII.

See Fantini

v. Salem State College, 557 F.3d 22, 31 (1st Cir. 2009)
(“Consequently, we find that there is no individual employee
liability under Title VII.”).

In reaching this conclusion, the

First Circuit determined that Congress designed Title VII as a
remedial scheme for holding employers liable for discrimination
that resulted not only from company-wide policies, but also from
the conduct of its employees on the theory of respondeat
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superior. Id. at 28-31.

Because of this rule, all claims against

Defendant Steve Sheridan are hereby dismissed.
Conclusion
For these reasons, Defendants’ motion to dismiss Plaintiff’s
Complaint is denied in part and granted in part.

All claims

against Defendant U.S. Department of Homeland Security by and
through the Secretary of Homeland Security remain.

All claims

against Defendant Steve Sheridan in his professional and personal
capacities are hereby dismissed.
It is so ordered.

/s/Ronald R. Lagueux
Ronald R. Lagueux
Senior United States District Judge
March 19 , 2014

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