Opinion
No. 99 Civ. 11713 (RCC).
March 26, 2001.
Opinion and Order
Plaintiff pro se Allen Dotson ("Plaintiff") brought this action against the Honorable Thomas P. Griesa ("Judge Griesa"), the Honorable Kevin T. Duffy ("Judge Duffy"), the United States District Court for the Southern District of New York Probation Office ("Probation Office"), Chris T. Stanton ("Stanton"), and Clifford P. Kirsh ("Kirsh") (collectively "Defendants"), pursuant to Title 28 of the United States Code, Section 1331, Title 42 of the United Stated Code, Section 1981, and Bivens v. Six Unknown Named Agents 403 U.S. 388 (1971), alleging employment discrimination. Plaintiff seeks compensatory and punitive damages, injunctive relief, and attorneys' fees and costs. Defendants move to dismiss the complaint in its entirety, with prejudice, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed herein, Defendants' motion is granted and Plaintiffs complaint is dismissed with prejudice.
I. Factual Background
For the purpose of deciding this motion to dismiss, the Court has assumed that all of the allegations in the complaint are true and has drawn all reasonable inferences in Plaintiff's favor. Cooper v. Pate, 378 U.S. 546, 546 (1964); Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). Plaintiff is an African-American male who was employed by the Probation Office for a period of approximately ten years. (Compl. ¶¶ 4, 10.) On December 8, 1997, Plaintiff received a memorandum from Stanton (the "Memorandum") alleging that on November 21, 1997, Plaintiff and1d Probation Officer Timothy Rodgers became involved in a "cover-up" while performing field work relating to their jobs and that he misrepresented his whereabouts and activities to his supervisors. Id. ¶ 11. The Memorandum informed Plaintiff that his employment with the Probation Office was terminated. Id. Judge Duffy, who was Chairman of the Probation and Criminal Law Committee at the time, signed the Memorandum. Id. ¶ 12. Plaintiff was asked to prepare a Probation Office form, Form #17, detailing his activities on November 21, 1997. Plaintiff claims that his request for a one day extension to locate his field notes was denied, resulting in a minor error in the form, which error he alleges was the sole basis of his termination. Id. ¶ 13.
Kirsh held a hearing concerning Plaintiffs termination on February 19, 1998, at which Plaintiff was represented by counsel. Id. ¶ 15. Plaintiff claims that Kirsh refused to permit Plaintiff's attorney to call any witnesses who would have verified his activities on November 21, 1997. Id. ¶ 15. On approximately April 21, 1998, Kirsh prepared a report in which he upheld Plaintiffs termination and in which, according to Plaintiff, he ignored statements from persons who Plaintiff argues supported his position. Id. ¶ 16. Judge Griesa, who was then Chief Judge of the United States District Court for the Southern District of New York, approved Kirsh's report and upheld Plaintiff's termination on April 21, 1998. Id. ¶ 17. Plaintiff requested an additional hearing on the merits of his termination, at which he desired to present evidence of "discrimination, disparate treatment and racial epithets" which he claims are part of the ongoing practice of the Probation Office. Id. ¶ 18. Judge Griesa denied his request for a hearing on October 13, 1998. Id.
Plaintiff alleges that the Probation Office's decision to terminate his employment, which decision was sanctioned by Defendants, was arbitrary and capricious because "similarly situated white Probation Officers were not disciplined evenly." Id. ¶ 19. He further claims that Kirsh's refusal to provide him with statistical data concerning the total number of black and white Probation Officers who work in the Probation Office, compared with the number of disciplinary actions and constructive discharges taken against blacks in the Probation Office was improper.Id. ¶ 23. Plaintiff details five specific instances which he alleges demonstrate the disparate treatment of white and black Probation Officers. Id. ¶¶ 24-27.
II. Federal Jurisdiction
Federal jurisdiction is proper pursuant to Title 28 of the United States Code, Section 1331. Venue is proper pursuant to Title 28 of the United States Code, Section 1391(b).
III. Standard of Review
In order for a party to succeed on a motion to dismiss under Rule 1(b)(6), it must be clear that the plaintiff can prove no set of facts that would establish his or her claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cohen v. Koenig 25 F.3d 1168, 1171-72 (2d Cir. 1994). When making a determination of whether plaintiff can prove any set of facts which would entitle him or her to relief, a court must assume that the allegations in the complaint are true and draw all reasonable inferences in the plaintiff's favor. Cooper 378 U.S. at 546;Kaluczky, 57 F.3d at 206. A complaint must "contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory." American Council of Learned Societies v. MacMillan Inc., 1996 WL 706911, at *3 (S.D.N.Y. Dec. 6, 1998). Vague and conclusory allegations are insufficient. However, a pro se complaint should be construed liberally so as to raise the strongest possible arguments suggested in the complaint." Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
IV. Bivens Claim
In Bivens v. Six Unknown Agents, the Supreme Court held that a plaintiff may maintain an action for damages against an agent of the federal government if such agent engages in unconstitutional conduct, in violation of the Fourth Amendment to the United States' Constitution, while acting under color of his or her authority. Bivens 403 U.S. 388 (1971); See Davis v. Passman 442 U.S. 228, 244 (1979) (extending Bivens' holding to Fifth Amendment claims). However, such an action is not available if there is an "explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress" or in cases where there are "special factors counseling hesitation in the absence of affirmative action by Congress." Bivens 403 U.S. at 396-97. One such special factor is where a Government program provides what Congress considers to be adequate remedial measures to address constitutional violations that occur in the course of its administration. Schweiker v. Chilicky 487 U.S. 412, 423 (1988). In such a case, courts should refuse to create Bivens actions, even if the existing remedies do not provide complete relief for the plaintiff. Id. (citing Bush v. Lucas 462 U.S. 367, 388 (1983)); Lee v. Hughes, 145 F.3d 1272, 1275 (11th Cir. 1998) (holding that no Bivens remedy was available, notwithstanding the fact that no other administrative or judicial review of the adverse personnel action was available to the plaintiff)); Lombardi v. Small Business Administration 889 F.2d 959, 961 (10th Cir. 1989).
The Civil Service Reform Act of 1978 ("CSRA") comprehensively overhauled the civil service system, and created an elaborate, new framework for evaluating adverse personnel actions against federal employees. Lindahi v. Office of Personnel Management 470 U.S. 768, 773-74 (1985). The CSRA expressly recognizes a remedy for constitutional challenges by employees. See 5 U.S.C. § 2301(b)(2) (stating, in part, that all employees should receive fair and equitable treatment in all aspects of personal management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights); see also 5 U.S.C. § 7503, 7513 (procedures relevant to suspension and removal). "The CSRA details the protections and remedies available to federal employees in such actions, including the availability of administrative and judicial review." Lee, 145 F.3d at 174 (citing United States v. Fausto, 484 U.S. 439 (1988)).
In Bush v. Lucas the Court declined to create a Bivens remedy for a federal employee who claimed his First Amendment rights were violated when he was demoted for making statements that were critical of the agency that employed him. In so holding, the Court found that the CSRA "provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies," and concluded that because such claims arise out of"an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies, it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy." Bush 462 U.S. at 368, 386. The Court has further held that the exclusion of certain classes of employees, such as probation officers, from remedies under the CSRA is not a result of congressional silence, from which courts may imply that the employee is then free to pursue other judicial remedies, but rather, is an indication of congressional intent to deny protections otherwise afforded. See Fausto, 484 U.S. at 447 (discussing the CSRA's effect on the Tucker Act). The Court holds that the CSRA is a "special factor" envisioned by the Bivens Court, which precludes aBivens remedy in this case.
As noted by the Eleventh Circuit in Lee the CSRA does not provide for judicial or administrative review of an adverse personnel action Lee 145 F.3d at 1274. However, the Supreme Court has indicated that it will not create a Bivens remedy in a federal employment action, even if no remedy at all has been provided by the CSRA. Lombardi 889 F.2d at 961. Here, the remedies afforded Plaintiff under the Equal Employment Opportunity Plan, established by the United States Judicial Conference and adopted by the Probation Office, provided Plaintiff with a hearing, during which he was represented by counsel, and review of the hearing. The Chief Judge of the Southern District of New York affirmed the findings of the hearing. Plaintiff took advantage of these remedies, and was ultimately unsuccessful on the merits of his claims. This Court can offer no redress.
Accordingly, to the extent Plaintiff's claims stem from his allegations that his employment was terminated based on racial discrimination, such a claim is a "prohibited personnel practice" for which the CSRA explicitly provides remedial mechanisms. See Williams v. McCausland 791 F. Supp. 992, 999 (S.D.N.Y. April 27, 1992) (citing 5 U.S.C. § 2302(b)(1), (b)(8), and (b)(9)). Similarly, to the extent Plaintiff challenges the process he received, this, too, is governed by the CSRA and precludes a Bivens claim. See id. (stating that the CSRA precludes a challenge to the process received because the CSRA's remedial scheme clearly recognizes a remedy for violations of constitutional rights). Defendants' motion to dismiss Plaintiff's Bivens claim is granted. Accordingly, Plaintiff is not entitled to money damages.
The Court also follows the reasoning set forth by the Eleventh Circuit in Hallock v. Moses, 731 F.2d 754, 757 (11th Cir. 1984) and adopted inWeiner v. Drug Enforcement Administration 1991 WL 221088 (S.D.N.Y. Oct. 21, 1999), holding that the CSRA precludes a plaintiff from seeking equitable relief, if the claim involves "classic employment dispute[s] of the type anticipated by Congress in enacting the CSRA." Id. at *3 (citation omitted); See Parola v. Internal Revenue Service 1999 WL 1215557, *6 n. 7 (E.D.N.Y. Dec. 15, 1999). Although the Second Circuit has not decided this issue, the Court holds that the denial of equitable relief in this case is entirely consistent with the Supreme Court's decisions involving the scope of the CSRA and squares with Congress' intent to provide a comprehensive scheme for federal employment grievances.
Here, Plaintiff's claims clearly involve the type of disputes envisioned by Congress when enacting the CSRA. Compare Compl. ¶ 1 (alleging race-based discrimination, disparate treatment, arbitrary and capricious acts, racial epithets, and denial of access to the Court in connection with Plaintiff's employment with the Probation Office)); with 5 U.S.C. § 2301(b)(2) (providing that, under the CSRA, all employees should receive fair and equitable treatment in all aspects of personnel management with out regard to political affiliation, race, color, religion, national origin, sex, marital status, age or handicapping condition, and with proper regard for their privacy and constitutional rights); 5 U.S.C. § 2302(b)(1), (b)(2), (b)(9) (setting forth remedial mechanisms under the CSRA for dealing with prohibited personnel practices). Therefore, Plaintiff is riot entitled to the injunctive relief he seeks.
V. Section 1981 Claim
Plaintiff also claims that Defendants' actions constituted intentional employment discrimination in violation of Title 42 of the United States Code, Section 1981 ("Section 1981"), which provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Section 1981 also provides that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c) (emphasis added). The language of the statute is clear that it provides a cause of action for discrimination under color of state law, but not for discrimination under color of federal law. See Williams v. Glickman 936 F. Supp. 1, 4 (D.D.C. 1996) (holding that the court must apply the plain language of the statute and dismiss Section 1981 claim because plaintiff did not allege impairment of rights by nongovernmental discrimination or impairment under color of state law). The Court holds that the text of Section 1981 is clear that a plaintiff cannot maintain a Section 1981 claim against a federal defendant acting under color of federal law. See Lee, 145 F.3d at 1277. Here, Defendants were acting under color of federal law when they terminated Plaintiff's employment with the Probation Office. Therefore, as Section 1981 cannot afford Plaintiff relief, the Court grants Defendants' motion to dismiss Plaintiff's Section 1981 claim.
CONCLUSION
For the reasons stated above, Defendants' motion to dismiss Plaintiff's complaint is GRANTED, and Plaintiff's complaint is DISMISSED WITH PREJUDICE.
SO ORDERED.