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Alford v. Nelson

United States District Court, E.D. North Carolina, Southern Division
Jul 26, 2023
7:22-CV-1 73-FL (E.D.N.C. Jul. 26, 2023)

Opinion

7:22-CV-1 73-FL

07-26-2023

CARLOS A. ALFORD, Plaintiff, v. BILL NELSON, et al., Defendants.


MEMORANDUM AND RECOMMENDATION

Robert B. Jones, Jr. United States Magistrate Judge

This matter is before the court for purposes of conducting frivolity review, pursuant to 28 U.S.C. § 1915(e)(2)(B), of Plaintiffs claims against Tammy Wright and Debbie Curtis after Plaintiff amended his complaint to add them as Defendants, [DE-22]. [DE-27], Plaintiffs amended complaint fails to state a claim against Wright or Curtis, and accordingly, it is recommended that the claims against them be dismissed. It is further recommended that the Rehabilitation Act claim against Jim Brienstein, Christine Paulsen, and the NASA Johnson Space Center be dismissed.

Plaintiff subsequently filed an Amendment to Complaint Exhaustion of Administration Appeal Closed, [DE-31], which pertains to a request for appointment of counsel and administrative exhaustion and does not impact the analysis of the instant issue referred for consideration.

I. Standard of Review

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.

In order to state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . . .'” Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.

In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

II. Discussion

Plaintiff Carlos Alford is a disabled veteran who applied for the position of paralegal specialist with NASA. Alford purports to have a juris doctorate in executive business law, over 20 years of experience working with disabled people and veterans, 20 years of experience working with the federal court system, an AAS in paralegal studies, bachelor's degrees in criminology and criminal justice, and two years of experience working at the NASA Goddard Spaceflight Center with computer programmers related to patent lawsuits against NASA. Alford alleges that it was determined he is the most qualified for the position and that he is entitled to a 10-point preference as a disabled veteran. Alford was contacted by an attorney at the Johnson Spaceflight Center and told he would never be hired, and at his interview Alford was asked performance-based questions but not about his experience and education. Alford was not hired for the position, and the hiring panel determined Alford lacked competencies of attention to detail; integrity/honesty; legal, government, and jurisprudence; manages/organizes information; and technology application. On December 2, 2021, the Johnson Space Center submitted a “pass over request” to OPM, and on December 21, 2021, OPM issued a decision that Alford committed no wrongdoing and should be placed at the top of the hiring class. Alford asserted claims against the NASA Johnson Space Center, Bill Nelson (NASA Administrator), Jim Brienstein (NASA Attorney), and Christine Paulsen (NASA Paralegal) under the Americans with Disabilities Act of 1990 (“ADA”) and against Brienstein and Paulsen for defamation. Compl. [DE-1 -1 ] at 1-7.

On January 19,2023, the undersigned conducted a frivolity review of the complaint. While noting uncertainty as to whether Alford properly exhausted his administrative remedies with respect to the employment discrimination claim, it was determined that that issue was more appropriately addressed on a Rule 12(b)(6) motion, and the claim was allowed to proceed. [DE- 9]. On April 10, 2022, before any answer or other response to the complaint was filed, Alford filed an amended complaint adding Wright and Curtis as Defendants. [DE-22]. On June 1,2023, the amended complaint was referred to the undersigned for frivolity review of the claims against Wright and Curtis. [DE-27].

In the Amendment to Complaint, Alford alleges he was discriminated against due to his disability of mental illness. Alford's amendment contains many of the same facts summarized above from his initial complaint and adds new facts concerning Wright and Curtis. Alford alleges that when Wright and Curtis were interviewed by the EEO counselor regarding Alford's claim, Wright stated there was an opening for a paralegal and that Alford was the only person qualified for the position; and when Wright and Curtis were asked by the EEO counselor if they knew Alford was disabled, they both stated that they were not aware Alford was an honorably discharged disabled veteran, which Alford asserts was a false statement. Am. Compl. [DE-22] at 1-2. In addition to the Amendment to Complaint, Alford also filed the EEO Counselor's Report, which indicates that Curtis and Wright were each employed as a Human Resource Business Partner at the Johnson Space Center, Wright posted the paralegal position for which Alford applied, and Wright was a member of the interview panel that found him to be not qualified for the position. [DE-22-1] at 2, 6.

Disability discrimination claims against a federal agency are brought under the Rehabilitation Act rather than the ADA. See Green v. Garland, No. 4:21-CV-2514-SAL-KDW, 2022 WL 3211217, at *14 (D.S.C. May 3, 2022) (“federal employee's disability-related claims lie under the Rehabilitation Act, not the ADA”), report and recommendation adopted, 2022 WL 2965634 (D.S.C. July 27, 2022). “The only proper defendant to a federal-sector employment discrimination action under Title VII, the Rehabilitation Act, or the ADEA is the ‘head of the department, agency, or unit. . . Kim v. Potter, No. CIV.A DKC 09-2973, 2010 WL 2253656, at *3 (D. Md. June 2, 2010) (quoting 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(1)(1); 29 U.S.C. § 633a(b) & (c)), aff'd, 416 Fed.Appx. 297 (4th Cir. 2011); Williams v. Dep't of Army, No. 3:20-CV-281 (DJN), 2022 WL 4380137, at *3 (E.D. Va. Aug. 22, 2022) (dismissing Rehabilitation Act claim against the Department of the Army and the individual defendants who were not the agency head), aff'd sub nom. Williams v. Dep't of the Army, No. 22-2001, 2023 WL 2571007 (4th Cir. Mar. 20, 2023). Defendant Bill Nelson is alleged to be the head of NASA, the agency that denied Alford employment. Accordingly, Bill Nelson is the only proper defendant for the Rehabilitation Act claim, and it is recommended that Alford's Rehabilitation Act claim against Jim Brienstein, Christine Paulsen, Tammy Wright, Debbie Curtis, and the NASA Johnson Space Center be dismissed.

To the extent Alford asserts that Wright and Curtis defamed him by stating they did not know he was disabled, which Alford contends was a false statement, Alford has failed to state a defamation claim. Alford does not allege where the statements by Wright and Curtis were made but the court will assume for purposes of frivolity review that they were made at their place of employment in Texas and will apply Texas defamation law.

“Defamatory statements are those that tend to (1) ‘injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury' as well as those statement that (2) ‘impeach any person's honesty, integrity, virtue, or reputation.”' Hadimani v. Hiremath, No. 14-22-00002-CV, 2023 WL 3596248, at *7 (Tex. App. May 23, 2023) (quoting Tex. Civ. Prac. & Rem. Code § 73.001). “The elements of defamation cause of action are: (1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a private individual); and (4) damages,'unless the statement constitutes defamation per se.” Id.

Alford alleges that Wright and Curtis stated they were not aware that he was an honorably discharged disabled veteran, and that statement was a lie. [DE-22] at 2. Even assuming the statement was false, the fact that Wright and Curtis claimed not to have known Alford was disabled only goes to their knowledge of Alford's disability and is not defamatory to Alford. It is not apparent how Wright and Curtis denying knowledge of Alford's disability would injure Alford's reputation or impeach his honesty or integrity. A statement must be both false and defame the plaintiff to be defamatory. See Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 356 (Tex. App. 2013) (finding a statement, even if false, was not defamatory because it did not impugn the plaintiffs reputation). Accordingly, the allegations against Wright and Curtis fail to state a claim for defamation.

III. Conclusion

For the reasons states above, it is recommended that Alford's Rehabilitation Act claim against Jim Brienstein, Christine Paulsen, Tammy Wright, Debbie Curtis, and the NASA Johnson Space Center and any defamation claim against Wright and Curtis be dismissed.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. You shall have until Wednesday, August 9, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.

If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright r. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).

Submitted, this 26th day of July, 2023.


Summaries of

Alford v. Nelson

United States District Court, E.D. North Carolina, Southern Division
Jul 26, 2023
7:22-CV-1 73-FL (E.D.N.C. Jul. 26, 2023)
Case details for

Alford v. Nelson

Case Details

Full title:CARLOS A. ALFORD, Plaintiff, v. BILL NELSON, et al., Defendants.

Court:United States District Court, E.D. North Carolina, Southern Division

Date published: Jul 26, 2023

Citations

7:22-CV-1 73-FL (E.D.N.C. Jul. 26, 2023)