Opinion
Civil Action 3:21-CV-543
09-08-2022
JAY KRUISE, Plaintiff v. UNITED STATES DEPARTMENT OF THE ARMY, et al., Defendants
MANNION, D.J.
REPORT & RECOMMENDATION DEFENDANTS' MOTION TO DISMISS, DOC. 18 PLAINTIFF'S MOTION TO AMEND, DOC. 25
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
Table of Contents
I. Introduction
II. Background & Procedural History
III. Legal Standards
A. Rule 12(b)(6): Motion to Dismiss For Failure to State a Claim
B. Rule 12(b)(1): Motion to Dismiss For Lack of Jurisdiction
C. Rule 15: Motion to Amend
IV. Analysis
A. Documents Outside the Pleadings
B. Whether Counts II & V of the First Amended Complaint Should be
Dismissed Due to Failure to Exhaust Administrative Remedies
1. Whether Plaintiff Initiated Informal Proceedings Related to his Hostile
Work Environment Claim within 45 Days
2. Whether Plaintiff Initiated Informal Proceedings Related to The Three
Claims Asserted Under Count V within 45 Days
C. Whether Count IV of the First Amended Complaint, and Plaintiff's Claim for Punitive Damages, Should be Dismissed Pursuant to 12(b)(1)
1. Whether Count IV of the First Amended Complaint Should be Dismissed
2. Whether Plaintiff's Request for Punitive Damages Should be Dismissed .37
D. Whether Count I of the First Amended Complaint Should Be Dismissed Because Plaintiff Did Not Plead Sufficient Facts
E. Whether Count III of the First Amended Complaint Should be Dismissed Because Plaintiff Did not Plead Sufficient Facts
F. Plaintiff's Request For Leave To File a Second Amended Complaint Should be Denied
V. Recommendation
I. INTRODUCTION
Jay Kruise, a former federal employee, initiated this pro se civil action alleging several employment discrimination claims following his removal from his position as an Information Technology Specialist at the Tobyhanna Army Depot. Pending before the Court are two motions. The first, filed by Defendants, is a motion to dismiss Plaintiff's amended complaint (Doc. 18). The second, filed by Plaintiff, is a motion seeking leave to file a second amended complaint.
Very recently, Plaintiff filed a second motion requesting leave to file an amended complaint. (Doc. 30). This motion has not been fully briefed and has not been reviewed by the Court.
After reviewing the pending motions and briefs, for the reasons explained herein it is RECOMMENDED that:
(1) Defendants' Motion to Dismiss (Doc. 18) be granted in part and denied in part.
a. Plaintiff's retaliation claim in Count III of the amended complaint should be DISMISSED.
b. Plaintiff's Bivens claim in Count IV of the amended complaint should be DISMISSED
c. Plaintiff's Racial Discrimination / Disparate Treatment claim in Count V of the amended complaint should be PARTIALLY DISMISSED. The claims related to incidents that occurred in 2014 and 2015 should be DISMISSED. The claims related to Plaintiff being placed on leave and his eventual termination should be permitted to proceed.
d. Plaintiff's request for punitive damages should be DISMISSED.
e. All other claims should be permitted to proceed.
(2) Plaintiff's motion to amend (Doc. 25) should be DENIED on the basis of futility. The proposed amendments to Count III fail to state a plausible legal claim.
II. BACKGROUND & PROCEDURAL HISTORY
In his first amended complaint, Plaintiff identifies himself as an Asian individual who suffers from depression. (Doc. 15, ¶ 8). On September 16, 2007, Plaintiff was assigned to a position as an Information Technology Specialist in “Networking Cell” at the Tobyhanna Army Depot in Monroe County, Pennsylvania. (Doc. 15, ¶ 12).
Plaintiff alleges that he had some problems with workplace harassment and discrimination in 2007 and 2013 that were addressed in a negotiated settlement agreement. (Doc. 15, ¶¶ 12-13). Plaintiff also alleges that in 2015 he requested accommodation due to his disability (depression) after he was moved to a customer service oriented position. (Doc. 15, ¶¶ 14-17). Although initially denied, Plaintiff was granted a temporary accommodation in June 2017 and was given an opportunity to submit medical documentation to support the necessity of accommodation on a more permanent basis. Id.
In May 2018, the temporary accommodation was rescinded. Plaintiff was moved from a private cubicle to a community work setting shared by twenty-five people. (Doc. 15, ¶ 17). Once he was moved to a community work setting, Plaintiff alleges that he was harassed by several employees, including William Grimaldi, James Redline, and Robert Wormuth.
Plaintiff alleges that the harassment began almost immediately.
First, William Grimaldi-an employee who worked at an adjacent desk- played loud music “to distract and annoy” Plaintiff. (Doc. 15, ¶ 18). Plaintiff asked Grimaldi to wear headphones, and Grimaldi refused. Id. After reporting Grimaldi to management, Plaintiff was moved to a new desk approximately forty feet away from Grimaldi's desk. (Doc. 15, ¶ 18). Plaintiff alleges that Grimaldi continued to harass Plaintiff by coughing on Plaintiff with an open mouth each time Grimaldi walked past Plaintiff's desk. (Doc. 15, ¶¶ 19-20). Plaintiff reported this behavior to supervisor William Moody in July of 2018, and reported it to both William Moody and Cathy Fulk in September 2018. Id. No action was taken.
Second, Plaintiff alleges James Redline coughed on Plaintiff with an open mouth while walking past Plaintiff's desk. (Doc. 15, ¶ 21). Plaintiff asked Redline to refrain from coughing in Plaintiff's vicinity. Id. Redline responded that he could cough wherever he wanted. Id. Plaintiff alleges that he reported the incident to William Moody by email. Moody denied receiving the email, and took no action. (Doc. 15, ¶ 22).
Third, Plaintiff alleges Robert Wormuth repeatedly belched on Plaintiff with an open mouth while walking past Plaintiff's desk. (Doc. 15, ¶ 23). Plaintiff alleges that Wormuth “laughed” when Plaintiff complained. Id.
On November 29, 2018, at a “shop meeting” Redline and Wormuth were told by team leader Alex Ostopick to stop coughing and belching on Plaintiff. (Doc. 15, ¶ 25). Later that afternoon, Redline intentionally coughed on Plaintiff again. (Doc. 15, ¶ 26). In response, Plaintiff walked to Redline's desk and coughed on Redline. Id. Plaintiff and Redline argued. Redline said, “I'm not afraid of you.” Id. Plaintiff responded that they could settle the matter off post. Id.
After the altercation between Plaintiff and Redline, William Moody filed a complaint against Plaintiff with the Tobyhanna Army Depot Law Enforcement. (Doc. 15, ¶ 27). In the complaint, Moody wrote that during the argument between Plaintiff and Redline, Plaintiff stated that “he knows they have guns and he has guns. And if they want to take this off post he was willing. He [Plaintiff] said he can use google and determine where they live.” Id.
After Moody filed his complaint, Redline and Wormuth were “recalled to Tobyhanna” to file similar complaints. (Doc. 15, ¶¶ 28-29). Redline and Wormuth's complaints did not mention guns or google. Id.
As a result of Moody, Redline, and Wormuth's complaints Plaintiff was placed on leave with pay beginning November 29, 2018. (Doc. 15, ¶ 30). Although Tobyhanna Army Depot law enforcement concluded that there was no basis to press criminal charges, Plaintiff's employment at the Army Depot was terminated on March 20, 2019. (Doc. 15, ¶ 9).
On April 2, 2019, Plaintiff alleges he filed a complaint with the Army's Office of Equal Employment Opportunity “within the 45 day deadline.” (Doc. 15, ¶¶ 3, 55).
On October 24, 2019, the Army's Office of Equal Employment Opportunity issued a decision in which it concluded that there was not discrimination or retaliation. (Doc. 15, ¶ 4). On November 14, 2019, Plaintiff appealed to the Merit Systems Protection Board (“MSPB”). Id. On August 9, 2020, the MSPB affirmed the EEO Office's decision. (Doc. 15, ¶ 5). On October 3, 2020, Plaintiff filed a petition with the Equal Employment Opportunity Commission (“EEOC”) seeking review of the MSPB decision. (Doc. 15 ¶ 6). On February 25, 2021, the EEOC affirmed the MSPB's decision. (Doc. 15, ¶ 7).
On March 24, 2021, Plaintiff initiated this pro se civil action against the United States Department of the Army, its Secretary, and the United States of America. (Doc. 1). On July 16, 2021, Defendants filed a motion to dismiss and brief in support. (Docs. 9, 10).
On July 22, 2021, Plaintiff filed a brief in opposition. (Doc. 11). Then, on August 3, 2021, Plaintiff filed his first motion to amend, with a proposed amended complaint attached. (Doc. 12). On August 5, 2021, Plaintiff filed his second motion to amend, with a proposed amended complaint attached. (Doc. 13).
On August 16, 2021, the Court denied Plaintiff's motions to amend as unnecessary because, at that time, Plaintiff was entitled to amend without seeking leave of court pursuant to Fed.R.Civ.P. 15(a)(1)(B). The proposed amended complaint attached to Plaintiff's second motion to amend was docketed as the amended complaint. (Doc. 15). Defendants' pending motion to dismiss the original complaint was denied as moot. (Doc. 14).
In his first amended complaint, Plaintiff names the following Defendants:
(1) The United States Department of the Army;
(2) Christine Wormuth, Secretary of the Army, in her official capacity (Doc. 15, p. 1); and
(3) The United States of America.
In his first amended complaint, Plaintiff asserts the following claims:
(1) Count I: Disability Discrimination / Denial of Reasonable Accommodation (under the Rehabilitation Act);
(2) Count II: Hostile Work Environment (under Title VII and the Rehabilitation Act);
(3) Count III: Retaliation (under Title VII and the Rehabilitation Act);
(4) Count IV: Fifth Amendment Due Process; and
(5) Count V: Racial Discrimination / Disparate Treatment (under Title VII and the Rehabilitation Act).
As relief, Plaintiff seeks compensatory damages, punitive damages, reasonable attorney fees, and costs.
On August 30, 2021, Defendants filed a motion to dismiss. (Doc. 18). On September 13, 2021, Defendants filed a brief in support. (Doc. 19). On September 28, 2021, Plaintiff filed a brief in opposition. (Doc. 22).
On January 16, 2022, Plaintiff filed a motion/brief requesting leave to amend. (Doc. 25). Attached to the motion/brief are two copies of Plaintiff's proposed amended complaint, one clean copy and one “redlined” copy identifying the proposed changes. (Docs. 25-1, 25-2). On February 23, 2022, Defendants filed a brief in opposition. (Doc. 27). On March 13, 2022, Plaintiff filed a reply. (Doc. 28).
On March 13, 2022, Plaintiff filed a document titled “Brief in Opposition re: 25 First Motion for Leave to File Second Amended Complaint.” (Doc. 28). In this document, however, Plaintiff seeks dismissal of Defendants' motion to dismiss. It does not address the arguments raised in opposition to Plaintiff's motion to amend.
Defendants' motion to dismiss (Doc. 18) and Plaintiff's motion to amend (Doc. 25) have been fully briefed by the parties and are ready to decide.
III. LEGAL STANDARDS
A. Rule 12(b)(6): Motion to Dismiss For Failure to State a Claim
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss, the court “must accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to the plaintiff, and ultimately determine whether Plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In review of a motion to dismiss, a court must “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothchild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. The court, however, “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to “assume that the [plaintiff] can prove facts that [he] has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where they are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Santiago v. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief” and instead must “‘show' such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, “stops short of the line between possibility and plausibility of ‘entitlement of relief.'” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
B. Rule 12(b)(1): Motion to Dismiss For Lack of Jurisdiction
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the court to dismiss an action for lack of subject matter jurisdiction. Motions brought under 12(b)(1) may present either a facial or factual challenge to the court's subject matter jurisdiction. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. And Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). This distinction is subtle but crucial.
In reviewing a facial challenge under Rule 12(b)(1), the standards associated with Rule 12(b)(6) are applicable. Id. The court's review of a facial challenge is limited to consideration of the complaint and documents referenced therein construed in the light most favorable to the plaintiff. Mortensen, 549 F.2d at 891; PBGC v. White, 998 F.2d 1192, 1196 (3d Cir. 1993).
In reviewing a factual challenge, the court may consider evidence outside the pleadings, including affidavits, depositions, and testimony in order to “satisfy itself as to the existence of its power to hear the case.” Mortensen, 549 F.2d at 891. In a factual challenge, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. If a dispute of material fact exists, “the court must conduct a plenary hearing on the contested issues prior to determining jurisdiction.” McCann v. Newman Irrevocable Tr., 458 F.3d 281, 290 (3d Cir. 2006); see also Berardi v. Swanson Mem'l Lodge No. 48, 920 F.2d 198, 200 (3d Cir. 1990) (stating that a district court must ensure that a plaintiff has “had an opportunity to present facts by affidavit or by deposition, or in an evidentiary hearing,” to support his claim of jurisdiction (citation omitted)).
When the court's subject matter jurisdiction over a complaint is challenged, plaintiff bears the burden of proving that jurisdiction exists. Id.
C. Rule 15: Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure governs motions to amend a complaint. This rule provides for three ways by which a Plaintiff may amend his complaint: (1) as a matter of course; (2) with the opposing party's written consent; and (3) by leave of court. Fed.R.Civ.P. 15. Here, Plaintiff seeks to amend his complaint by leave of court pursuant to Fed.R.Civ.P. 15(a)(2). This provision also provides that leave to amend should be freely granted “when justice so requires.” Fed.R.Civ.P. 15(a)(2). Even under this liberal standard, however, a motion for leave to amend may be denied when it is justified. “Permissible justifications [for denying a request for leave to amend] include: (1) undue delay; (2) bad faith of dilatory motive; (3) undue prejudice to the opposition; (4) repeated failures to correct deficiencies with previous amendments; and (5) futility of the amendment.” Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995). “The Third Circuit has interpreted these factors to emphasize that prejudice to the non-moving party is the touchstone for the denial of a request for leave to amend.” Tarkett Inc. v. Congoleum Corp., 144 F.R.D. 289, 290 (E.D. Pa. 1992)(citing Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989)).
IV. ANALYSIS
A. Documents Outside the Pleadings
In Borough of Moosic v. Darwin Nat. Assur. Co., the Third Circuit explained that:
Generally, a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); see Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (noting that courts usually consider only the allegations in the complaint, attached exhibits, and matters of public record). If matters outside the pleadings are presented to and not excluded by the court, the motion to dismiss must be converted to a motion for summary judgment under Rule 56 and the court must give all parties a reasonable opportunity to present evidence. Fed.R.Civ.P. 12(d). “However, an exception to the general rule is that a ‘document integral to or explicitly relied upon in the complaint' may be considered ‘without converting the motion [to dismiss] into one for summary judgment.'” In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426 (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)). “A court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on that document.” Pension Benefit Guar. Corp., 998 F.2d at 1196.556 Fed.Appx. 92, 95 (3d Cir. 2014).
In this case, Defendants rely on documents not attached to Plaintiff's amended complaint. Some of these exhibits were provided by Plaintiff with his original complaint, but then were not attached to Plaintiff's amended complaint. (Doc. 2) (approximately 211 pages of exhibits attached to Plaintiff's original complaint). Defendants also attached additional documents to their motion to dismiss. (Docs. 19-1, 19-2, 19-3, 19-4, 19-5, 19-6, and 19-7) (86 pages of exhibits attached to Defendants' brief in support). Plaintiff submitted additional exhibits with his brief in opposition. (Docs. 22-1, 22-2, 22-3, 22-4, 22-5, 22-6, 22-7, 22-8, 22-9, 22-10, 22-11, 22-12, 22-13, 22-14, 22-15) (108 pages of exhibits attached to Plaintiff's brief in opposition). Altogether, approximately 400 pages of exhibits have been submitted to the Court in connection with this motion to dismiss.
Defendants note that, to the extent the Court believes Doc. 2 is superseded by the Amended Complaint, they will file those documents themselves in support of this motion to dismiss. (Doc. 19, p. 12 n. 2). The Court does believe these documents were superseded by the amended complaint, as they are not attached to it. However, it will not require Defendants to re-file these materials and instead will treat these documents as exhibits to Defendants' motion to dismiss.
I decline to convert Defendants' motion to dismiss to a motion for summary judgment. The decision regarding whether to convert a motion to dismiss to a motion for summary judgment is within the sound discretion of the district court. Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir. 1992). Additional discovery is necessary to determine whether Plaintiff's claims have been exhausted, and to determine the circumstances under which Plaintiff's temporary accommodation was rescinded.
Furthermore, Defendants have not articulated a specific basis as to why each exhibit should be considered at the motion to dismiss stage (i.e., because it is undisputedly authentic, expressly reference in the amended complaint, or is integral to the amended complaint). Instead, Defendants generally argue in their legal standard that:
“courts may consider exhibits attached to a defendant's motion to dismiss if it is ‘an undisputedly authentic document' and ‘plaintiff's claims are based on the document.'” Grp. Against Smog & Pollution, Inc. v. Shenango, Inc., 810 F.3d 116, 127 (3d Cir. 2016) (quoting Pension Benefit Guar. Corp., 998 F.2d at 1196)). And as the Court explained in Escalera v. Harry, 15-cv-02132, 2016 WL 6694502, at *6 (M.D. Pa. Sept. 28, 2016), “document[s] integral to or explicitly relied upon in the complaint” may be considered in connection with a 12(b)(6) motion. Id. (citing Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 1426 (3d Cir. 1997)).
(Doc. 19, pp. 13-14). Similarly, Plaintiff has not offered any basis as to why the particular documents he submitted may be considered at the motion to dismiss stage.
Absent any explanation from the parties as to why the 400 pages of documents from outside the pleadings should be considered at the motion to dismiss stage, I decline to consider these documents.
B. Whether Counts II & V of the First Amended Complaint Should be Dismissed Due to Failure to Exhaust Administrative Remedies
“When an employee complains of a personnel action serious enough to appeal to the [Merit Systems Protection Board (“MSPB”)] and alleges that the action was based on discrimination, [he] is said (by pertinent regulation) to have brought a ‘mixed case.'” Kloeckner v. Solis, 568 U.S. 41 (2012) (citing 29 C.F.R. § 1614.302). Mixed cases are governed by special procedures set out in the Civil Service Reform Act of 1978 (“CSRA”), regulations of the MSPB, and the Equal Employment Opportunity Commission (“EEOC”). Id. These “special procedures” provide “diverse procedural routes” for an employee's pursuit of a mixed case. Perry v. MSPB, 137 S.Ct. 1975, 1980 (2017). The Supreme Court explained:
A federal employee bringing a mixed case may proceed in a variety of ways. [He] may first file a discrimination complaint with the agency itself, much as an employee challenging a personnel practice not appealable to the MSPB could do. See 5 C.F.R. § 1201.154(a); 29 C.F.R. § 1614.302(b). If the agency decides against [him], the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court. See 5 C.F.R. § 1201.154(b); 29 C.F.R. § 1614.302(d)(1)(i). Alternatively, the employee may initiate the process by bringing [his] case directly to the MSPB, forgoing the agency's own system for evaluating discrimination charges. See 5 C.F.R. § 1201.154(a); 29 C.F.R. § 1614.302(b). If the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: [He] may request additional administrative process, this time with the EEOC, or else [he] may seek judicial review. See 5 U.S.C. §§ 7702(a)(3), (b); 5 C.F.R. § 1201.161; 29 C.F.R. § 1614.303.Kloeckner, 568 U.S. at 45.
Defendants argue that Plaintiff's Hostile Work Environment claim in Count II of the Amended Complaint should be dismissed because Plaintiff did not initiate pre-complaint proceedings pursuant to 29 C.F.R. § 1614.105(a)(1) within 45 days. Defendants also argue that Count V of the Amended Complaint should be dismissed because Plaintiff did not mention the discrete discriminatory acts mentioned in that Count when he contacted the EEO in April 2019 for precomplaint proceedings. Specifically, Defendants argue:
Kruise's failure to exhaust dooms his pre-removal claims. A plaintiff must exhaust all administrative remedies prior to bringing a federal complaint of discrimination. Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). Federal regulations require a federal employee to make initial contact with the agency's Equal Employment Opportunity (EEO) office within 45 days of the adverse action being contested, 29 C.F.R. § 1614.105(a)(1), and, after a period of conciliation, filing a formal complaint of discrimination within 15 days of receiving the notice of a right to file a formal complaint, 29 C.F.R. § 1614.106(b).
Here, Kruise failed to meet these filing obligations with regard to his hostile work environment claims (Count II) and his disparate treatment claim in which he contends that his position description was changed, that he was denied a transfer to another position, and that he was placed on administrative leave (Count V).
First, although he makes a conclusory statement of hostile work environment, Kruise's initial contact with the Army EEO made no mention of the discrete employment actions referenced in Count V. See Jay Kruise EEO Complaint (Ex. 1, Doc. No. 2).
Second, Kruise's initial contact with the Army EEO occurred more than five months after any alleged “hostile work environment” noted in Count II and discrimination in Count V. Id. Kruise was last present in the office in November 2018, when he was placed on administrative leave, and did not return to work before receiving notice of his removal in March 2019. See Am. Compl. (Ex. 15) ¶¶ 9, 30. His initial contact with EEO on April 2, 2019, [was] five months after any possible workplace harassment. See id. ¶ 55. Indeed, even after he tried to amend his initial EEO complaint, he did not make the claims alleged in Count II and Count V.
Therefore, this Court should dismiss Counts II and V of Kruise's Complaint. See Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997); Hornsby v. USPS, 787 F.2d 87, 89 (3d Cir. 1986) (holding exhaustion of administrative remedies is a prerequisite to bringing suit
under Title VII, and the failure to do so provides an affirmative defense to the government).
(Doc. 19, pp. 19-21) (internal footnote omitted).
In a footnote, Defendants wrote:
Plaintiff attempted to raise the hostile work environment claim and claim that his position description had been changed in his appeal to the MSPB on November 14, 2019. Def.'s Ex. 6. While the MSPB judge did consider these, the Army preserved its position that the claims had not been timely exhausted and were waived. Agency's Response to Appellant's Appeal of Final Agency Decision, attached as Ex. 7, at 4-5.
(Doc. 19, p. 20, n. 3).
Plaintiff argues that he exhausted Count II. Specifically, Plaintiff asserts:
In the Agency's motion to dismiss, the Agency cited “failure to exhaust” as the reason to dismiss Kruise's hostile work environment and harassment claims (Count II). Kruise timely filed, within 45-day reporting policy when he became aware of it, a hostile work environment claim with the Agency EEO office on February 19, 2019, and February 24, 2019, but it was dismissed by the Agency [Exhibit 10]. On April 2, 2019, Kruise filed a hostile work environment claim again when he was removed from federal service on March 20, 2019 [Exhibit 11]. AM. Comp. ¶ 55. The agency EEO office failed to process Kruise's hostile work environment complaint filed on April 2, 2019:
Under regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R.1614.103,.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a
remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Kruise is an aggrieved employee because he was removed from federal service.
29 C.F.R. Section 1614.106(d) states, "A complainant may amend a complaint at any time before the conclusion of the investigation to include issues or claims like or related to those raised in the complaint". When Kruise raised the hostile work environment and harassment complaints with the investigator, the agency EEO manager notified the investigator not to investigate the hostile work environment and harassment complaints [Exhibit 12]. "Further, once the Agency is aware that a Complainant is raising a new like or related claim, the Agency is required to amend the complaint and acknowledge the amendment in writing. See EEO MD-110, Chap. 5, Sect. III(B)(2); see also 29 C.F.R. 1614.106(e). The Agency must also notify the EEO investigator to include the new allegations in the investigation. See EEO MD-110, Chap. 5, Sect. III(B)(2)."
In National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2002 U.S. Lexis 4214 (2002), the Supreme Court concluded that "[a] charge alleging a hostile work environment claim ... will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id. at 122. "A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice." Id. at 117.
According to 29 CFR § 1614.302 (Mixed case complaints), the MSPB accepted the claim of a hostile work environment for adjudication. Am. Comp. ¶ 55, Exhibit 1, Pg. 21, Para. 2.
(Doc. 22, pp. 21-23).
Plaintiff does not address Defendants' argument that Count V of the Amended Complaint should be dismissed due to failure to exhaust, but does generally argue that it should not be dismissed. (Doc. 22, pp. 12-16).
1. Whether Plaintiff Initiated Informal Proceedings Related to his Hostile Work Environment Claim within 45 Days
In Count II of his First Amended Complaint, Plaintiff alleges a claim of hostile work environment in violation of Title VII and the Rehabilitation Act arising from events that preceded his termination (from May 2018 through November 29, 2018), including: the loud music, coughing, and belching. (Doc. 15, ¶ 59). Specifically, Plaintiff alleges:
Count Two: Defendants Engaged in Hostile Work Environment
55) The averments contained in Paragraphs 1 through 53 of this Complaint are realleged and incorporated into this Count. The MSPB accepted the claim of Hostile Work Environment for adjudication. Kruise became aware of the hostile work environment on March 20, 2019 when he was removed from federal service. Kruise filed an EEO complaint alleging a hostile work environment on April 2, 2019 within 45 days of the adverse action (removal).
56) Kruise was treated adversely in his employment when its employees subjected him to a hostile work environment in the form of harassment creating a pervasive atmosphere that was difficult for his work in due to racial (Asian) and disability (mental) discrimination. The hostile work environment altered Kruise's conditions of employment; he was removed from federal service.
57) Management officials failed to prevent hostile workplace conditions. After Kruise had filed multiple harassment complaints with management officials, the Agency employees and its officials retaliated by labeling his a “threat to workforce”, “potential active shooter”, “delusional”, “crazy”, “paranoid”, “stalker”, “yelling expletives”, “threats of physical violence”, and “being so angry”. The harassments escalated in severity and frequency. As a result, the harassment amounted to
discriminatory changes in Kruise's terms and conditions of his employment (he was removed from federal service).
58) As reported by Kruise's supervisor (Fulk) on September 24, 2018, “Jay finds the issues began when placed in central office space.”
59) Kruise was repeatedly subjected to loud music and deliberately getting sprayed with germs in the form of an open mouth, coughing and belching from various coworkers from May 2018 to November 29, 2018, to disrupt his working environment and made him feel uncomfortable. These harassment incidents were not petty slights, annoyances, or isolated incidents. The harassers repeatedly assaulted Kruise with airborne microbes that they knew could cause him minor irritation and respiratory complications.
60) After Kruise had filed harassment complaints against Grimaldi in May, July, and September 2018 with Moody and Fulk via email, Moody and Fulk failed to investigate the harassment complaints and document them per Anti-Harassment Procedures Bulletin #6, The Anti-Harassment Procedures states explicitly:
A supervisor or management official who receives notice of an allegation or witnesses harassing conduct will immediately: (a) contact the servicing CPAC's MER Office, the EEO Office or the Legal Office within one business day for consultation and guidance, as appropriate; (b) conduct a prompt, thorough, impartial and appropriate inquiry; and (c) document the efforts to promptly address and resolve the matters at issue [Emphasis added].
61) Fulk and Moody allowed their favored employees to recreate the May and September 2018 harassment incidents months later and present them as facts to remove Kruise in the Notice of Proposed Removal.
62) On November 8, 2018, Kruise politely asked Redline to refrain from coughing without covering his mouth directly parallel to him and within his personal space. Kruise asked him to stop
coughing on him because the harassment escalated in severity and frequency. Redline responded with, “I can cough where ever I want.” Kruise then told him he would file a harassment complaint against him, per the Tobyhanna Army Depot AntiHarassment Procedures. Redline just said, "go ahead." There was no yelling and screaming on Kruise's part, as alleged by Redline. There was no arguing or boisterous act on Kruise's part, as alleged by Redline.
63) Kruise then filed a harassment complaint against Redline with Redline's supervisor, Moody, Fulk, and the Agency EEO office (John Sutkowsky) to ask for assistance. Management officials (Moody, Fulk, and Sutkowsky) did not investigate Kruise's complaint per Anti-Harassment Procedures Bulletin #6. The record shows that Moody, Fulk, and Sutkowsky did receive Kruise's November 8, 2018 harassment complaint against Redline.
64) On the morning of November 29, 2018, Redline's harassment of Kruise continued throughout the day; it was nonstop as if he was intentionally trying to agitate and provoke Kruise. Also, Robert Wormuth (Redline's coworker) was continuously belching loudly while walking by Kruise's desk as if he was also doing it intentionally to agitate Kruise and provoke him. Both of these individuals worked in Kruise's former section, Networking Cell. The job or position he would have held had he not been reassigned to accommodate Moody in 2013. Per the TYAD Anti-Harassment Bulletin #6, Kruise then notified Wormuth via email (carbon copy Moody and Fulk) to ask him to stop belching while walking by his desk on November 29, 2018.
65) Wormuth responded to Kruise by getting up from his chair and laughing out loud while turning around to look at Kruise and belched. The incident was reported to Moody by Kruise, and Moody acknowledged the incident in his December 3, 2018 statement.
66) Kruise was getting very agitated by Redline and Wormuth's continuous harassment, which increased in severity.
Management of TYAD (Moody, Fulk, and Agency EEO office) took no action on Kruise's harassment complaints. Kruise then asked his coworker, Alex Ostopick, to advise Network Operations Branch personnel at the home team meeting to refrain from whistling, coughing, or belching loudly near his desk within the proximity of his personal space (Redline and Wormuth were exhibiting these rude and offensive behaviors around Kruise and were doing it intentionally to harass him). Moody confirmed Kruise's request.
On December 3, 2018, Moody wrote in his statement:
Additional facts leading up to incident at 14:15 on 29 Nov 18.
Early in the day, during the Network Operations team meeting, Alex Ostopick pasted on a message from Jay Kruise. Alex Ostopic is the Lead within the Information Assurance Office where Jay works. Alex pasted on that Jay requested that no one cough, burp, sneeze or the like within the vicinity of his work area [Emphasis added].
67) Redline was intentionally provoking Kruise on November 29, 2018, looking for a fight, knowing full well that in September 2018, Kruise had confronted Grimaldi for harassing him by repeatedly coughing on him without covering his mouth within his personal space. Redline acknowledged in his statement to the TYAD police that he witnessed that incident:
....Approximately 3 weeks prior to the last stated event Mr. Kruise had gotten into a verbal argument with Mr. Bill Grimaldi very similar to latest incident with myself which included the profanity and request to go outside to fight. [Emphasis added].
68) The record shows Kruise was subjected to unwelcome conduct (harassment) based on his race (Asian) and disability (mental). Kruise filed multiple harassment complaints against Grimaldi, Redline, and Wormuth from May to November 2018. The harassment Kruise was subjected to was severe or pervasive because they were cited for removing him from federal service.
69) As a direct and proximate result of Defendants' conduct, Kruise has suffered mental anguish, emotional distress, loss of his livelihood, lost wages and benefits, injury to his reputation, humiliation and embarrassment, impoverishment and hardship, extensive legal fees, and other kinds of injuries.
(Doc. 15, ¶¶ 55-69).
Defendants argue that Plaintiff failed to exhaust his administrative remedies because he did not initiate timely pre-complaint informal counseling with the EEO within the forty-five day time period. 29 C.F.R. § 1614.105. This regulation further provides that:
The agency or the Commissioner shall extend the 45-day time limit in paragraph (a)(1) of this section 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 not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The forty-five day requirement is not jurisdictional. Simon v. Potter, 2006 WL 3486108 at *3 (D.N.J. Nov. 30, 2006).
Section 1614.107 of Title 29 of the Code of Federal Regulations addresses the circumstances under which dismissal of a formal EEO complaint is required. It provides, in relevant part, that:
(a) Prior to a request for a hearing in a case, the agency shall dismiss an entire complaint:
(2) That fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106 and 1614.204(c), . . ., or that raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor;
(b) Where the agency believes that some but not all of the claims in a complaint should be dismissed for the reasons contained in paragraphs (a)(1) through (9) of this section, the agency shall notify the complainant in writing of its determination, the rationale for that determination and that those claims will not be investigated, and shall place a copy of that notice in the investigative file. A determination under this paragraph is reviewable by an administrative judge if a hearing is requested on the remainder of the complaint, but is not appealable until final action is taken on the remainder of the complaint.
Defendants argue in their brief that the forty-five day deadline began to run on November 29, 2018, the last day Plaintiff was exposed to the allegedly hostile environment, and not on March 20, 2019, the day Plaintiff received his removal notice.
Plaintiff does not allege when he initiated informal pre-complaint proceedings with the EEO counselor, or whether he complained about a hostile work environment when he did so. He alleges that he filed an EEO complaint, which I infer occurred after appropriate pre-complaint proceedings with the EEO counselor. He also alleges that the “MSPB accepted the claim of Hostile Work Environment for adjudication.” (Doc. 15, ¶ 55). Accepting these allegations as true, and drawing all reasonable inferences in Plaintiff's favor, I find that Plaintiff has alleged enough facts in his amended complaint to plausibly allege exhaustion. Accordingly, I find that Plaintiff's hostile work environment claim should proceed at this stage.
2. Whether Plaintiff Initiated Informal Proceedings Related to The Three Claims Asserted Under Count V within 45 Days
In Count V of the Amended Complaint, Plaintiff alleges Disparate Treatment (Racial) claims under Title VII and the Rehabilitation act based on three separate incidents: (1) the 2014 job description change; (2) the 2015 denial of his request to move from customer support; and (3) the events leading up to his 2019 termination (the coughing and belching). Specifically, Plaintiff alleges:
Count Five: Defendants Unlawfully Discriminated Against Kruise Based on His Race (Asian), by Their Disparate Treatments of Him. ....
104) Kruise was treated substantially more adversely than other similarly situated Caucasian employees in the Information Management Division, coworkers William Moody, Charles Medwetz, William Grimaldi, James Redline, Robert Wormuth, and Sammy Hussung in terms and conditions of employment.
105) Kruise's position description was changed in May 2014 while working in the Networking Cell. His co-workers, Moody and Charles Medwetz's PD, were not changed. Kruise was moved to Visual Information services and eventually Customer Support to accommodate Moody. Violation of 5 U.S. Code § 2302- Prohibited Personnel Practices.
106) Kruise's co-worker, Sammy Hussung, requested a move from Customer Support to Network Operations Branch, and it was granted. Kruise made a similar request, and it was denied. Kruise had to provide a medical note to justify a new duty assignment.
107) Redline, Grimaldi, and Wormuth were reported for harassment on multiple occasions but were not placed on administrative leave, charge for conduct unbecoming a federal employee, and fired like Kruise. Moody and Fulk failed to follow written regulations on multiple occasions to investigate Kruise's harassment complaints and were not disciplined like Kruise.
108) As a direct and proximate result of Defendants' conduct, Kruise has suffered mental anguish, emotional distress, loss of his livelihood, lost wages and benefits, injury to his reputation, humiliation and embarrassment, impoverishment and hardship, extensive legal fees, and other kinds of injuries.
(Doc. 15, ¶¶ 104-108).
Defendants argue that Count V should be dismissed for two reasons. First, Defendants argue that Plaintiff did not raise specific allegations of racial discrimination during the initial counseling phase of the EEO process. Second, Defendants argue that Plaintiff did not contact an EEO counselor within the 45 day deadline for any of the discrete instances of discrimination alleged.
In his response, Plaintiff only addresses the claim arising out of his termination. He does not address the position description claim or the denial of his request for accommodation. Specifically, Plaintiff contends:
The claim of discrimination based on race (Asian) (Count V) is a valid claim under the Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The TYAD officials and employees harassed and
discriminated against Kruise, by subjecting him to humiliation and discrimination to which others were not subjected, all because of his race. Under 5 U.S.C. 7703(c), federal employees have the right to de novo review of discrimination claim by the reviewing court.
Under McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) analysis, an employee can establish a prima facie case of discrimination by showing that they: 1.) is a member of a protected group; 2.) suffered an appealable adverse employment action; 3.) the adverse action gives rise to an inference of discrimination.
Here, in this case, Kruise is a member of a protected group in race and appearance. Am. Comp. ¶ 8. He was terminated from his civil service job of nineteen (19) years "based on the incident of November 29, 2018" appealable to the MSPB. Am. Comp. ¶ 4, 9, 51. In Connors v. Chrysler Fin. Corp., 160 F.3d 971, 974 (3d Cir. 1998) (stating that third element of prima facie case in disparate treatment ADEA case is that plaintiff suffered an adverse employment action), the court ruled that "some form of 'adverse employment action' sufficient to evoke the protection of Title VII."
The investigation by TYAD law enforcement shows Kruise did not violate any law or Agency regulation on November 29, 2018. The police concluded "It was determined that this incident didn't meet the elements of a crime this case will be closed until information is presented to warrant a follow up investigation or charges.", "Based on SGT Warner and my investigation the elements were not met for the crime of harassment." [Emphasis added]. Am. Comp. ¶ 31, 32; Exhibit 3. However, Plaintiff was terminated "based on the incident on November 29, 2018". Am. Comp. ¶ 51, 10; Exhibit 4, page 16, para. 3. Kruise was treated differently (disparate treatment) compared to his peers (Grimaldi, Redline, and Wormuth, all white males) who had harassed Kruise but was not charged for "1) Making Statements that Caused Anxiety and Disruption in the Workplace and Violated TYAD Policy Memorandum # 13 - Violence in the Workplace; and 2) Conduct Unbecoming a Federal Employee."
The records show Kruise reported them for harassment dating back to May 2018. Am. Comp. ¶ 59, 60; Exhibit 5. Kruise was the only person placed on administrative leave for the November 29, 2018
incident and was eventually removed from federal service. The management officials, Moody and Cathy Fulk ["Fulk"] failed to follow Agency written regulation (Tobyhanna Army Depot AntiHarassment Procedures Bulletin #6) on three (3) occasions to investigate Kruise's harassment complaints but was not charged for violating a workplace rule. Failure to observe written regulations, orders, rules, or procedures for the third offense is "5 day suspension to removal" [Exhibit 6, bates numbering 500, #14]. Kruise was the only person charged for violating a workplace rule even though law enforcement found no violation of law or regulation. The three essential elements of a prima facie claim of racial discrimination are present.
The Agency Anti-Harassment Procedures Bulletin #6 requires TYAD management officials to promptly (within one business day) "conduct a prompt, thorough, impartial and appropriate inquiry" and "document the efforts to promptly address and resolve the matters at issue." Am. Comp. ¶ 60; Exhibit 7. The record shows that Kruise reported Grimaldi, Wormuth, and Redline for harassment dating back to May 2018, but management officials failed to properly investigate and document his complaints. Am. Comp. ¶ 59 - 68. On December 3, 2018, TYAD management officials allowed their favored employees to recreate the complaints filed by Kruise against them and present them as facts to remove Kruise from federal service. Am. Comp. ¶ 99; "DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT", pg 6, para. 4.
The Army Regulation 690-700; Chapter 751 Table 1-1: Table of Penalties for Various Offenses does not support employment termination for "Disruption in the Workplace" for the first offense [Exhibit 6]. The U.S. Supreme Court has ruled, "Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required." Morton v. Ruiz, 415 U.S. 199, 235 (1974). Agency procedures must be followed as well. Vitarelli v. Seaton. 359 U.S. 535, 539-40 (1959). In Furnari v. Warden, 218 F.3d 250 (3d Cir. 2000), the court explained that, because the agency had bound itself to provide a statement of reasons for denying parole, its failure to do so constituted an abuse of discretion. Id. at 255. An agency abuses its discretion if it fails to
follow its own regulations and procedures. Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984).
(Doc. 22, pp. 12-16) (emphasis in original).
With respect to the allegations of disparate treatment arising for the termination, I find that this claim should be permitted to proceed at this time. Plaintiff alleges in his Amended Complaint that Plaintiff filed EEO complaints underlying this action on April 2, 2019. (Doc. 15, ¶ 3). He does not allege when he contacted the EEO counselor for informal pre-complaint proceedings or what he complained of. The issue of whether Plaintiff's disparate impact claim relating to his termination was adequately presented in those proceedings is a factual issue that may be more appropriately resolved at the summary judgment stage.
Because Plaintiff has not responded to Defendants' argument that he did not timely initiate EEO counseling for the 2014 and 2015 incidents, this portion of Defendants' motion to dismissed is deemed unopposed. See e.g. Tambasco v. United States Dep't of Army, No. 3:17-CV-1857, 2018 WL 1203466 at *2 (M.D. Pa. Mar. 8, 2018) (citing Sikkelee v. Precision Airmotive Corp., No. 07-886, 2011 WL 1344635, at *4 (M.D. Pa. Apr. 8, 2011) (dismissing claims as unopposed when the plaintiff failed to respond to arguments made by the defendants in support of their motion to dismiss); Lada v. Delaware Cnty Cmty. Coll, No. 08-4754, 2009 WL 3217183, at *10 (E.D. Pa. Sept. 30, 2009) (“To put it simply: plaintiffs who fail to brief their opposition to portions of a motion to dismiss do so at the risk of having those parts of the motions to dismiss granted as uncontested.”)). I also note that if Plaintiff had initiated EEO proceedings in 2019, as he says, those proceedings would be well past the forty-five day deadline for the 2014 and 2015 incidents.
C. Whether Count IV of the First Amended Complaint, and Plaintiff's Claim for Punitive Damages, Should be Dismissed Pursuant to 12(b)(1)
In Count IV of the First Amended Complaint, Plaintiff asserts a Fifth Amendment due process claim alleging he was not given access to all of the documents used against him, was not given access to his work computer and email, and was not given access to the investigation report written by the Tobyhanna Army Depot law enforcement until after the proceedings. (Doc. 15, ¶¶ 94-102).
Defendants contend that Count IV of Plaintiff's First Amended Complaint, and Plaintiff's requests for punitive damages should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) due to sovereign immunity. Defendants argue:
Kruise can neither bring a constitutional tort nor obtain punitive damages here. As the Supreme Court has explained, “[i]t is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for [subject matter] jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). See also FDIC v. Meyer, 510 U.S. 471, 475 (1994). “It is a fundamental principle of sovereign immunity that federal courts do not have jurisdiction over suits against the United States unless Congress, via statute, expressly and unequivocally waives the United States' immunity to suit.” United States v. Craig, 694 F.3d 509, 511 (3d Cir. 2012). Moreover, “[l]imitations and conditions upon which the Government consents to
be sued must be strictly observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 161 (1981).
Here, Kruise sues the Army in his official capacity for alleged violations of his Constitutional rights (i.e., deprivation of due process). In FDIC v. Meyer, the Supreme Court found that Congress did not waive sovereign immunity for constitutional claims for money damages against the United States under the Federal Torts Claims Act (FTCA). 510 U.S. at 475. Thus, the Court has no jurisdiction over Kruise's constitutional tort claim stated in Count IV.
Kruise's claim for punitive damages fares no better. Under Title VII, a plaintiff may seek punitive damages for violations of civil rights by entities “other than a government, government agency, or political subdivision.” 42 U.S.C. § 1981a(b)(1). Thus, on the face of the statute such a punitive remedy is not available. And the Rehabilitation Act adopts the remedies of Title VII. 29 U.S.C. § 794a(a)(1).Thus, this Court should dismiss Kruise's punitive damages claims.(Doc. 19, pp. 21-22).
In response, Plaintiff argues that Count IV of the First Amended Complaint should not be dismissed. Specifically, Plaintiff contends:
In the Agency's motion to dismiss, the Agency cited "Sovereign Immunity." 42 U.S. Code § 1983 barred the Agency from citing sovereign immunity to dismiss Kruise claims of due process rights violation under the Fifth Amendment of the U.S. Constitution and his claim for punitive damages. Plaintiff is requesting equitable relief under the Back Pay Act.
42 U.S. Code § 1983 (Civil action for deprivation of rights) allows individuals to file a claim against the government to recover damages for injuries. Specifically, 42 U.S. Code § 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws by any person acting under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." See Gomez v. Toledo, 446 U.S. 635, 638 (1980). Plaintiff has a property right to continued employment. Am. Comp. ¶ 95.
In Gomez, the U.S. Supreme Court determined that only two elements must be pled to properly assert a cause of action under 42 U.S. Code § 1983. First, the Plaintiff must specifically identify the constitutional right of which he or she was deprived. Id. at 640. Second, Plaintiff must assert that "the person who deprived him of that federal right acted under color of state or territorial law." Id. Kruise has satisfied the two elements cited in Gomez:
1. The Agency violated Kruise due process rights under the Fifth Amendment of the U.S. Constitution. Am. Comp. ¶ 1.
2. The Deciding official, Robert Haas, Tobyhanna Army Depot Chief of Staff, acted on behalf of the Agency (Department of the Army) to remove Kruise from federal service. Am. Comp. ¶ 71.
The Agency violated Kruise's procedural due process. First, the Agency hid the law enforcement report of investigation from Kruise. Am. Comp. ¶ 97. The law enforcement report of the investigation was only provided to Plaintiff after he requested it under the Freedom of Information Act in June 2019 [Exhibit 13]. Therefore, his reply to the Notice of Proposed Removal on January 28, 2019, was flaw. Am. Comp. ¶ 98. The “employee's response is essential not only to the issue of whether the allegations are true, but also with regard to whether the level of penalty to be imposed is appropriate.” See Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1376 (Fed. Cir. 1999) (citing Loudermill).
Second, the Agency Human Resources violated its policy in their "investigation." According to the Agency's "MER's Internal Discipline Process," MER (Management Employee Relations) "must wait for all sworn statements and report of Investigation" [Exhibit 14]. TYAD law enforcement closed its investigation on December 17, 2018 [Exhibit 15]. The Agency management officials asked their favored or loyal employees, and employees Kruise had filed complaints to write statements on December 3, 2018. Am. Comp. ¶ 39, 65, 66, 98, 99. They provided them to MER on December 12th, and December 14th. Am. Comp. ¶ 33, 39, 41, 99. The Agency violated their "Internal Discipline Process" when they conducted an "investigation" to remove Kruise on December 3rd, December 12th and 14th before the
conclusion of the law enforcement investigation. See Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984). The violation is direct or circumstantial evidence that Kruise, a career civil servant, was provided a phony due process because they completely ignored their own "Internal Discipline Process" and the report of a law enforcement investigation, which concluded "elements did not meet the crime for harassment. This report is final." [Exhibit 15].
Third, the deciding official relied improperly on unsubstantiated misconduct as an aggravating factor in Kruise's removal. The Deciding Official (Haas) lied in his affidavit to the EEO investigator that he was unaware of the Plaintiff's prior EEO-protected activity when he was fully aware of it. Am. Comp. ¶ 75-78. Haas relied on false information provided to him by employees loyal to Moody, and employees Kruise had filed complaints to justify removing Kruise from federal service. The Unemployment Compensation hearing and MSPB hearing revealed that the "evidence" cited in the Notice of Proposed Removal contains false information. Am. Comp. ¶ 41, 100101. “[e]ven where the facts are clear, the appropriateness or necessity of the discharge may not be.” See Cleveland Board of Education v. Loudermill, 470 U.S. 543 (1985).
In Mathews v. Eldridge, 424 U.S. 319 (1976), "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Id. at 333. In other words, the Agency did not afford Kruise with a meaningful opportunity to respond by merely providing an empty process for presenting his defense against the Agency's adverse action.(Doc. 22, pp. 24-28).
1. Whether Count IV of the First Amended Complaint Should be Dismissed
In Count IV of his first amended complaint, Plaintiff asserts a due process claim against a federal agency (Department of the Army), the United States, and a federal official in her official capacity (Christine Wormuth). Although Congress established a damages remedy under 42 U.S.C. § 1983 against state officials for violations of the federal constitution, it did not create an analogous statute for damages against federal officials. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, however, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). “[A]ctions brought directly under the Constitution against federal officials have become known as ‘Bivens actions.'” Vanderklok v. United States, 868 F.3d 189, 198 (3d Cir. 2017). Count IV of the first amended complaint is construed as a Bivens claim.
“[S]overeign immunity constitutes a jurisdictional bar to claims against the United States and its agencies, unless Congress has specifically waived such immunity.” Landis v. Wilson, 1:19-CV-1301, 2021 WL 4502234 at *6 (M.D. Pa. Sept. 30, 2021) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). It is well established that Congress has not waived this immunity for Bivens claims asserted against the United States or its agencies (i.e., the Army). See e.g. Wilson v. Pallman, No. 09-787, 2009 WL 2448577 at *4 (E.D. Pa. Aug 7, 2009) (holding that a plaintiff could not bring a Bivens claim against the United States because it has not waived its sovereign immunity to lawsuits making constitutional claims in the employment context); Drabick v. Sebelius, No. 1:10-CV-1841, 2012 WL 2411658 at *4 (M.D. Pa. June 26, 2012) (dismissing § 1983 and Bivens type claim against the Army based on sovereign immunity). Because Congress has not waived sovereign immunity, this Court does not have jurisdiction over Plaintiff's Bivens claims. Accordingly, Plaintiff's Bivens claims against the United States and the Army should be dismissed.
As to Defendant Wormuth, Plaintiff has sued the secretary of the army in her official capacity. “An action against government officials in their official capacity constitutes an action against the United States.” Lewal v. Ali, 289 Fed.Appx. 515, 516 (3d Cir. 2008). Thus, the claim against Defendant Wormuth is also barred by sovereign immunity and should be dismissed because this Court lacks jurisdiction.
2. Whether Plaintiff's Request for Punitive Damages Should be Dismissed
If this recommendation is adopted, Plaintiff's only remaining claims arise under Title VII and the Rehabilitation Act. For damages on Title VII claims, the relevant statute is 42 U.S.C. § 1981a(b)(1). See 42 U.S.C. § 2000e-5(e)(3)(B). This statute provides, that:
(1) Determination of punitive damages
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.42 U.S.C. § 1981a(b)(1) (emphasis added). The rehabilitation act incorporates the remedies available under Title VII. 29 U.S.C. § 794a.
The United States is a government and the United States Department of the Army is a government agency. Therefore, Plaintiff cannot recover punitive damages for his remaining claims. Furthermore, Defendant Wormuth is sued in her official capacity, which constitutes an action against the United States itself. For the same reason, Plaintiff cannot recover punitive damages for his remaining claims against Defendant Wormuth.
Accordingly, Plaintiff's request for punitive damages should be dismissed.
D. Whether Count I of the First Amended Complaint Should Be Dismissed Because Plaintiff Did Not Plead Sufficient Facts
In Count I of the first amended complaint, Plaintiff alleges a claim of failure to accommodate under the Rehabilitation Act. In support of this claim, Plaintiff alleges:
Count One: Defendants Unlawfully Discriminated Against Kruise Based on His Disability, or Perception of His Disability, by Removing Him from Federal Service ....
43) Kruise is and was when the Agency terminated his employment and at all other pertinent times a disabled person because he has and had a mental impairment that substantially limits one or more of his major life activities, including working.
44) Kruise is and was at the time that the Agency terminated his employment and at all pertinent times a disabled person because he has and had a record of such a mental impairment and because he was and is regarded by Defendants as having such a mental impairment.
45) Kruise is and was at all pertinent times a qualified individual with a disability because he can and did have the capacity to perform the essential functions of his position with reasonable accommodation, without endangering the health or safety of Kruise or any other individuals.
46) The Agency terminated Kruise's employment based on his mental impairment, his record of such a mental impairment, and because the Agency considered him as having such a mental impairment.
47) Before the Agency terminated his employment, Kruise requested that the Agency provide him with reasonable accommodations. The Agency temporarily provide him with reasonable accommodations. The reasonable accommodations did not impose an undue burden on Defendant's operations.
48) The Agency, by and through Kruise's supervisory employees, knowingly and intentionally terminated Kruise's employment based on his mental disability. Agency management officials relied on statements of Kruise's coworkers that became aware of Kruise's mental disabilities through rumors. Eddy Acevedo stated, “I've been told that he has been a ‘problem' for a long time before I arrived (3 years ago), we (Tobyhanna) is lucky the situations have not been ‘worse' in relation to Mr. Kruise,” “I would like to start by expressing a deep concern over the safety of individuals that have to work near Jay Kruise.”, and “if you ask anyone that knows him here at Tobyhanna about Mr. Kruise, you will be more than likely get a well-known joke along the lines of ‘you don't want to get on his bad side so you wont (sic) be a target when he comes and shoots up the place.”, “That is a VERY common joke. Not a great sign.” Mark Hazen called Kruise “Hostile, uneasy and unstable,” “There have been numerous references by employees over
the years such as “he is going to shoot the place up', ‘he will be the active shooter,' ‘he is totally delusional' and ‘someone needs to do something.” [Emphasis added]. These two individuals did not witness the November 29, 2018 incident involving Kruise and Redline, but management used their statements to remove Kruise from employment.
49) The Agency's employees engaged in mental disability discrimination against Kruise in the past when they suspended his security clearance and employment when they found out he was seeking psychiatric treatment while working for the Agency in Germany. Tobyhanna Army Depot management officials were aware of Kruise's EEO disability discrimination complaint filed against the Agency in Germany in 2006.
50) The Agency's justification for its termination of Kruise's employment was pretextual and knowingly false. As set forth in Paragraphs 1-41 and 42-49, Agency management officials failed to follow written regulations to investigate Kruise's harassment complaints against three coworkers and retaliate against Kruise, reporting discrimination, wrongdoing, and harassment.
51) The Agency's Security Division did not find any evidence to support the alleged acts of violence and closed the investigation, despite the fact Moody reported to them on November 29, 2018, that Kruise allegedly communicated a threat of violence. Agency management officials chose to report information that they knew to be false to retaliate against Kruise for his earlier EEO complaint reporting management of wrongdoing, coworkers harassment, and mental health treatment disclosure. Agency management officials used the November 29, 2018 incident as a pretext to cause his removal from federal service. As stated by the Agency representative in the Agency's Brief in Opposition to Appeal, filed with the Equal Employment Opportunity Commission on December 4, 2020, “Complainant was terminated based on the incident on November 29, 2018.” The November 29, 2018 incident was nothing more than “Discourtesy” or “Failure to observe written regulations, orders, rules or procedures.” According to Army
Regulation 690-700, Chapter 751, the third offense for each is “3-10 day suspension” and “5 day suspension to removal,” repeatedly.
52) The Agency willfully disregarded the report of the investigation conducted by two sworn federal law enforcement officers that there was no evidence to substantiate the alleged act of violence or a violation of memorandum # 13 by Kruise on November 29, 2018, and used the incident as part of the false information relied on for Kruise's termination.
53) The Agency's actions, in this case, were counter to the Federal Government becoming a model employer. By punishing Kruise for voluntarily seeking help for a mental health disorder, the Agency sent a resounding message to Kruise and thousands of other loyal federal employees with similar disorders to keep such illnesses as quiet as possible and avoid seeking assistance from either the Agency or private professionals. By refusing to be a “model employer” for employees with disabilities such as Kruise, as required by federal law (29 C.F.R. § 1614.203(a)), the Agency shut down its capacity to take proactive measures to help such employees.
54) As a direct and proximate result of Defendants' conduct, Kruise has suffered mental anguish, emotional distress, loss of his livelihood, lost wages and benefits, injury to his reputation, humiliation and embarrassment, impoverishment and hardship, extensive legal fees, and other kinds of injuries.(Doc. 15, ¶¶ 43-54).
Defendants argue that Plaintiff has not pleaded enough facts to state a plausible claim of disability discrimination or failure to accommodate under the Rehabilitation Act because he has not pleaded facts that suggest he could support a prima facie claim. In support of their position, Defendants assert:
Kruise's contention that officials discriminated against him because he has a disability, which he alleged to be depression, fails as he has no factual allegations to support that conclusion. See Compl. ¶¶ 13, 47. Although this Court must assume all factual allegations as true, “threadbare recitals” and “conclusions of law” do not have that same assumption. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). If a plaintiff attaches documents that directly contradict his claims or shows the lack of discrimination, the assumption also does not apply. WP 851 Assocs., L.P. v. Wachovia Bank, N.A., No. 07-2374, 2008 U.S. Dist. LEXIS 2211, at *43, n. 26 (E.D. Pa. Jan. 10, 2008) (documents that WP 851 has offered in support of its claim (i.e., the documents attached as exhibits to its Complaint) do not support, and, in fact, contradict, its argument); see also Centrella v. Bath, 633 F.Supp. 1016, 1019 (E.D. Pa. 1986) (“We accept as true the allegations of the complaint insofar as they are specific, factual and not contradicted by plaintiff's exhibits.”).
Here, Kruise alleges that his coworkers were discriminating against him by expressing that they are scared of Kruise and that “you don't want to get on his bad side so you wont (sic) be a target when he comes and shoots up the place.” Id. Notably absent from these allegations is any connection to Kruise's actual disability, which is depression. See Compl. (Doc. No. 1) § 14 (stating he needed a reasonable accommodation due to his depression); MSPB Decision. (Doc. No. 2) at 19 (summarizing Kruise's disability claim based on his depression). There is, of course, no logical connection between having depression and that depression causing you to make or being accused of making threatening comments. Nor does Kruise allege that the people who made these comments were even aware that he suffers from depression. As to this idea that he is dangerous, Kruise never claimed that one of the manifestations of his depression is to be assaultive or threatening. Simply believing someone is assaultive or threatening does not believe you thought that individual had some type of mental disability.
Likewise, Kruise fails to allege a connection between any person involved in this case and the suspension of his security clearance in 2006 when he worked in Germany. See Comp. (Doc. No. 1) ¶ 34.
He also fails to allege facts that would support a conclusion that a person's mere knowledge of events occurring 12 years earlier in Germany is suggestive of discriminatory intent. In particular, Kruise contends that the investigation by the Army's Security Division cleared him of any wrongdoing and that the Army improperly disregarded this conclusion in terminating. Id. ¶¶ 50-51. The EEO decision of February 25, 2021, however, provides that “the report did not clear [Kruise] of the allegations.” 2/25/2021 EEO Decision (Ex. 3, Doc. No. 2) at 8. Rather, the report merely concluded that the “elements did not meet the crime for harassment.” Id. at 8, n. 3. It cannot be gainsaid that Kruise admitted to engaging in verbal altercation and an administrative law judge found that Kruise intentionally coughed on and threatened co-workers. See id.
Kruise's allegation that the Army acted improperly in terminating him given the Army regulatory Table of Penalties is also contradicted by the actual Army policy. Compare Am. Compl. (Doc. No. 15)¶ 51 and Table of Penalties (Ex. 16, Doc. No. 2). Kruise suggests he should have received a lesser penalty than removal because “[t]he November 29, 2018 incident was mothing more than ‘Discourtesy' or ‘Failure to observe written regulations, orders, rules or procedures'” and it was his first offense Compl. ¶ 51. The policy, which notes it is “a guide to discipline, not a rigid standard,” provides that
when an employee has repeatedly committed the same offense. even though the employee is being charged with the offense for the first time, it may be appropriate to exceed the maximum suggested penalty. When the offense the employee committed is especially serious, compared to normal degree of the staged offense, there may be a basis for exceeding the maximum suggested penalty.
Table of Penalties (Ex. 16, Doc. No. 2).
Most importantly, the document Kruise references in his Amended Complaint directly contradict the nature of his offense. In reality, he was removed for “1) Making Statements that Caused Anxiety and Disruption in the Workplace and Violated Tobyhanna Army Depot Policy Memorandum #13 - Violence in the Workplace; and 2) Conduct Unbecoming a Federal Employee.” MSPB Decision (Ex. 2,
Doc. No. 2) at 2. And Kruise did not just have one incident, he had ten additional instances of threatening behavior. Id. at 5.
Last, Kruise did not even allege that the deciding official in his removal had a discriminatory motive and concedes facts that would allow a reasonable decision maker to conclude that he had made threats of violence against his coworker, Am. Compl. (Doc. No. 15) (“Kruise walked over to Redline's area and coughed, then walked away” and after an argument started, said “We can settle this off post”). Accordingly, this Court should dismiss Count I.
(Doc. 19, pp. 22-26).
In response, Plaintiff argues:
The claim of disability (mental) discrimination (Count I) is a valid claim under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The employee can establish a prima facie case of discrimination under the Rehabilitation Act '(1) that he or she has a disability; (2) that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job.'" Wishkin v.Potter, 476 F.3d 180, 184-85 (3d Cir. 2007) (quoting Shiring v. Runyon, 90 F.3d 827, 831(3d Cir. 1996)).
Kruise is an individual with a disability (mental). Am. Comp. ¶ 36, 37, 38, 39, 44. During the relevant time, Kruise was able to perform the essential functions of his job with or without reasonable accommodation. Am. Comp. ¶ 45. However, he was provided a temporary reasonable accommodation pending a medical note [Exhibit 8]. Kruise was terminated from federal service because management officials and coworkers considered him a "threat to the workforce." Am. Comp. ¶ 34, 43, 46, 48, 49. The three essential elements of a claim of disability (mental) discrimination are present.
(Doc. 22, p. 16).
Title VII, the Americans with Disabilities Act and the Rehabilitation Act serve largely the same purpose-to prohibit discrimination in employment against members of certain classes. Title VII prohibits employers from discriminating against employees based on race, color, religion, sex, and national origin. Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013). Title I of the Americans with Disabilities Act prohibits employment discrimination against qualified individuals with disabilities. The Rehabilitation Act prohibits federal agencies from discriminating against individuals with disabilities in employment decisions. In his first amended complaint, Plaintiff asserts that Count I arises under Title VII of the Civil Rights Act and the Rehabilitation Act. (Doc. 15, ¶ 1). However, based on Plaintiff's brief-which addresses the elements of a Rehabilitation Act claim only-I construe the claim as arising under the Rehabilitation Act only.
To establish a prima facie claim for discrimination or failure to accommodate under the Rehabilitation Act, a plaintiff must show: “(1) he is a disabled person within the meaning of the [Rehabilitation Act]; (2) he is otherwise qualified to perform the essential functions of the job, with or without accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Khoury v. Secretary United States Army, 677 Fed.Appx. 735, 737 (3d Cir. 2017). Defendants argue that Plaintiff has not pleaded enough facts to raise a reasonable expectation that discovery will reveal evidence that could prove a prima facie case under the Rehabilitation Act because Plaintiff did not explain why his depression caused the conflict (and his reputation with coworkers as hostile, uneasy and unstable) that resulted in Plaintiff's removal. I am not persuaded.
First, Plaintiff alleges that he has a disability (depression), and was perceived by his co-workers as suffering from some sort of mental illness that made him hostile, uneasy, and unstable. Second, Plaintiff alleges that he is qualified to perform his job with or without reasonable accommodation. He also alleges facts that show he requested, and was granted, a temporary accommodation. Specifically, Plaintiff alleges that he was assigned to a private cubicle for a period of time and was directed to “provide satisfactory medical documentation ‘an explanation of the medical basis for any conclusion that you will likely become ill, or harm yourself or others by carrying out the duties of your position of an IT Specialist (Customer Support), including your ability to work around your co-workers.'” (Doc. 15, ¶ 16). Third, Plaintiff alleges that he was terminated from his employment several months after he was moved out of his private cubicle into a community work setting where he had multiple conflicts with co-workers.
Accordingly, I find that Plaintiff has provided enough factual information for his rehabilitation act claim to proceed at this early stage of litigation.
E. Whether Count III of the First Amended Complaint Should be Dismissed Because Plaintiff Did not Plead Sufficient Facts
In Count III of his amended complaint, Plaintiff asserts a retaliation claim under Title VII and the Rehabilitation Act. He alleges:
Count Three: Defendants Unlawful Discrimination Against Kruise Based on Retaliation for his Prior EEO Activity ....
71) On the issue pertaining to retaliation for Prior Protected Activity - EEO, MSPB Administrative Judge determined that:
Haas, the deciding official, testified that he did not know the appellant and was unaware of his prior EEO activity. AF, Tab 31. The appellant did not refute this testimony. Nor did the appellant demonstrate that Fulk, who was aware of his EEO activity, influenced Haas. The appellant educed no evidence of a motive to retaliate against him. His prior EEO activity was not the “but for” cause, or even a consideration, in the Army's decision to remove him. See Savage, 122 M.S.P.R. 612, ¶ 48.
72) In the Notice of Proposed Removal dated “22 January 2018”, the Agency granted Kruise an opportunity to reply to the Notice of Proposed Removal to “Mr. Herb Shirey, Director, Installation Services, Tobyhanna Army Depot, Tobyhanna, PA 18466.” Kruise notified the Agency on January 22, 2019, via email, “It will be a conflict of interest if Mr. Shirey or Mr. Ramey is the deciding official because they participated in my pending EEO complaint investigation.”
73) Herbert Shirey [“Shirey”] (Kruise's 3rd level supervisor) and William Ramey [“Ramey] (Kruise's 2nd level supervisor) were named responsible management officials in Kruise's active EEO investigation (Agency Number ARTYAD18JUL03184) when Kruise was subjected to removal.
74) On January 28, 2019, Fulk notified Kruise via email “Attached is an amendment to the proposed removal from federal service which was sent to you on 22 January 2019. The amendment names Robert Haas as the deciding official.”
75) Haas was asked by the EEO investigator in an affidavit dated “11 July 2019” under penalty of perjury:
Protected Activity (Prior EEO Activity)
Q: Did you have any knowledge of Mr. Kruise's prior EEO activity?
R: To the best of my recollection, no. [Emphasis added].
76) Haas was aware of Kruise's prior EEO activity but lied about it. In Kruise's reply to the Notice of Proposed Removal to Haas dated February 11, 2019, Kruise stated reprisal for prior EEO-protected activity as one of the reasons management officials of the Directorate of Information Services wanted to remove him.
77) Haas acknowledged receiving Kruise's reply to the proposed removal in the Notice of Removal memorandum dated March 19, 2019:
You provided me a written response to the proposal letter on 11 February 2019, and I will address your written response . . .
78) Haas acknowledged in his affidavit dated 11 July 2019 that he “read through” Kruise's response:
Removal Action
Q: According to the record, you were the deciding official for Ms. Kruise's (sic) removal action, is that correct?
R: Yes.
Q: According to the record, you issued the Notice of Removal to Mr. Kruise on March 19, 2019, is that correct?
R: I read through his response. I considered his response with its enclosures, The Notice of Proposed Removal and Douglas Factors in making my decision [Emphasis added].
Q: What else did you consider when making the decision to remove Mr. Kruise from federal service?
R: See response above.
79) The Agency management officials had a motive to remove Kruise from federal service to retaliate against him for reporting wrongdoing, racism, and prior EEO-protected activity.
80) Agency management officials were aware of Kruise's EEO complaint (Agency Number ARTYAD18JUL03184) under investigation while he was being considered for removal, and Ramey was named responsible management official. Fulk acknowledged that she was aware of Kruise's EEO-protected activity in August 2018. Shirley participated in the EEO investigation. Human Resource Specialist Melissa Newman [“Newman”] (Management Employee Relations) was responsible for processing Paulette Vadovsky's [“Vadovsky”] illegal repromotion.
81) The EEO investigation Agency Number ARTYAD18JUL03184 revealed Shirey, Human Resource Specialist Newman, and Human Resource Specialist Rebekkah Morgenweck [“Morgenweck”] engaged in fraud against the United States government to obtain money for an employee not entitled to it by repromoting Vadovsky without competition. Shirey stated in his affidavit:
I asked the IMD Division Chief, Mr. Chriss Brooks, to see if Vadovsky could qualify for the VI position, with the idea that we could repromoted her to a position so she could assume responsibilities more commensurate with her salary. That review was worked through the Tobyhanna CPAC Management Employee Relations and Staffing Branches and it was determined that she was qualified and was still on the Repromotion List.
82) The Agency management officials lied under the penalty of perjury, and they have violated the Labor-Management Agreement Article 21 (Promotions) and committed fraud against the United States government. The Deputy Director of
Installation Services', William Ramey, lied in his affidavit by stating:
Tobyhanna Army Depot, Installation Services, strictly follows Office of Personnel Management (OPM) Merit Systems policies and guidelines when making selections for promotions and repromotions.
83) Morganweck admitted she played a role in the illegal repromotion of Vadovsky to commit fraud against the U.S. Government to obtain money for a private citizen not entitled to it:
Management contact me (Herb Shirey and Chris Brooks) to ask if they may re-promote Paulette to the grade and to a similar position from which she used to hold on a permanent basis because they had a vacant, permanent slot approved to fill. Because Paulette held the grade and similar position on a permanent basis in the past, I did tell management yes, they may re-promote Paulette.
84) Vadovsky was demoted to a lower pay grade and reassigned from Information Technology Specialist, GS-2210-11, step 7 to Supply Technician, GS-2005-07, step 0 on December 4, 2011, under legal authority 5 CFR § 432.101, because she failed on multiple occasions “to obtain Information Assurance (IA) certification by 31 Dec 2010 as a requirement to hold her position as an Info Technology Specialist, GS-2210-11. She failed to complete after several attempts.”
85) Vadovsky was repromoted from Supply Technician, GS-2005-07 to Lead Visual Information Specialist, GS-1001 on October 1, 2017, under the legal authority 5 CFR § 335.102 without competition.
86) 5 CFR § 536.102(b) prohibits a federal agency from providing pay or grade retention to an employee who is reduced in grade or pay for a personal cause such as Vadovsky, who was demoted almost a decade earlier for performance issues. Vadovsky's repromotion was a fraud against the federal government. The record of the EEO investigation Agency
Number ARTYAD18JUL03184 (Repromotion) was not made available to the MSPB Administrative Judge of the Commission for review because after Kruise requested an appointment of an EEOC administrative judge on May 18, 2019, the Agency EEO manager uploaded the case file to Philadelphia EEOC Regional Office on March 21, 2019. Kruise was terminated on March 20, 2019, but he did not receive the notice of termination almost a week later via the United States Postal Service. Kruise had to file a new EEO complaint about removal (Agency Number ARTYAD19APR01219) instead of amending Agency Number ARTYAD18JUL03184 to include removal for reporting Agency management officials of committing fraud against the U.S. government. Kruise raised a retaliation claim to the Commission but was never addressed. The Commission instructed Kruise to file a civil lawsuit in a federal district court to appeal the MSPB final decision and only gave him 30 days instead of the standard 90 days.
87) Kruise was punished for reporting his coworkers, Grimaldi, Redline, and Wormuth, for harassment based on race (Asian) and disability (mental) because they did not harass anyone else in the room except Kruise. The record shows Kruise reported harassment by coworkers to Fulk and Moody on multiple occasions but took no action per regulation to stop the harassment. Moody and Fulk management officials failed to follow written regulation for more than three occasions and should have been punished per Army Regulation 690-700, Chapter 751, but they removed Kruise instead.
88) Human Resource Specialist Newman acknowledged that she guided Fulk (proposing official) and Haas (deciding official) to remove Kruise from federal service in her affidavit to the EEO investigator on July 25, 2019.
89) The Deciding Official, Haas (lied in his affidavit of not knowing Kruise's prior EEO-protected activity), the proposing official, Fulk, and the employee disciplinary approval authority, TYAD Legal office, knew of Kruise's previous and pending EEO activities. The termination happened after Kruise appealed to the EEOC on January 22, 2019; the EEOC granted Kruise a
right to file a civil lawsuit to void the NSA on March 8, 2019. Kruise requested an EEOC hearing on March 18, 2019 for Agency Number ARTYAD18JUL03184. Kruise was removed effective March 20, 2019.
90) The Agency continued to retaliate against Kruise after he was removed from federal service when Tobyhanna Army Depot opposed his unemployment compensation in June 2019.
91) Kruise asserted that Agency management officials were motivated by unlawful retaliation when they initiated the removal action; therefore, the removal process itself was tainted with unlawful retaliatory animus.
92) As a direct and proximate result of Defendants' conduct, Kruise has suffered mental anguish, emotional distress, loss of his livelihood, lost wages and benefits, injury to his reputation, humiliation and embarrassment, impoverishment, hardship, extensive legal fees, and other kinds of injuries.(Doc. 15, ¶¶ 70-92).
Defendants argue that Plaintiff fails to state a plausible retaliation claim. In support of their position, Defendants contend:
Count III suffers from some of the same infirmities as Count I. Kruise has acknowledged that he made some of the key remarks that support the decision maker's removal decision and fails to offer any evidence of retaliation. Kruise's allegations that Mr. Hass [sic] knew of his prior EEO activity during Kruise's administrative process, see id. ¶¶ 71-79, is not the same as knowing of the EEO activity prior to an employment decision and acting because of that prior EEO activity. Kruise also offers no facts suggesting Haas had any motive for reprisal. And “and individual's mere knowledge of a plaintiff's involvement in protected activity is not sufficient to establish that the individual harbored discriminatory animus.” Macknet v. Univ. of Pa., No. 15-5321, 2017 U.S. Dist. LEXIS 148948, at *18-19 (E.D. Pa. Sep. 14, 2017). As the Supreme Court explained, such an allegation “pleads facts that are merely consistent with a defendant's liability,
[but] stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). Moreover, as the Supreme Court has explained, “employers need not suspend previously planned [adverse actions] upon discovering that [an employee has engaged in protected activity], and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001). Accordingly, this Court should dismiss Count III.(Doc. 30, pp. 26-27).
In response, Plaintiff argues:
Title VII (Section 717) prohibits retaliation if you complain about discrimination in the federal government. In Komis v. Secretary of U.S. Dept. of Labor, 918 F.3d 289 (2019), the second paragraph of the Court's opinion reads, "This appeal requires us to decide whether federal employees may bring retaliation claims under Title VII. We conclude they may."
To state a prima facie case of retaliation under Title VII, a plaintiff must show that "(1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action." Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995).
During the relevant time, Kruise had a record of EEO-protected activities. Am. Comp. ¶ 73, 80, 81, 87, 89, 90. The Agency terminated Kruise employment using November 29, 2018 as a pretext to mask retaliation. Am. Comp. ¶ 51, 89, 101. In the "AGENCY'S BRIEF IN OPPOSITION TO APPEAL" to the Commission, the Agency made the following statement "Complainant was terminated based on the incident of November 29, 2018..." [Exhibit 4, page 16, para. 3]. TYAD law enforcement's investigation of the November 29, 2018 incident found no violation of law or Agency regulation. Am. Comp. ¶ 31, 32; Exhibit 3.
Now, the Agency is arguing, "And Kruise did not just have one incident, he had ten additional instances of threatening behavior."
[DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT, pg 21, Para. 1]. The Agency should be judicially estopped from making this argument because it successfully argued before the Commission in the appeal that Kruise "was terminated based on the incident of November 29, 2018" incident. The Third Circuit Court had applied the doctrine before. See Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266 (3d Cir. 2012). The sole issue now should be whether the Agency's removal of Kruise from federal service for the November 29, 2018 incident was a pretext to mask retaliation and discrimination. "Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000); see Data General Corp. v. Johnson, 78 F .3d 1556, 1565 (1996) (observing that a tribunal may judicially estop a party from arguing a position contrary to one that it successfully argued in an earlier proceeding).
There was a connection between Kruise's employment termination and his EEO-protected activities. While Kruise was on administrative leave for the November 29, 2018 incident, he had an active EEO investigation pending against TYAD management officials for denying him repromotion. Am. Comp. ¶ 80. The EEO investigation revealed his management officials engaged in fraud to obtain money from the Federal Government for an employee not entitled to receive it. Am. Comp. ¶ 72, 73, 80-83, 86. In the Notice of Proposed Removal memorandum dated January 22, 2018, Kruise's supervisor directed him to reply to the management official involved in Kruise's repromotion EEO complaint (Agency Number ARTYAD18JUL03184). Kruise informed them it would be a conflict of interest. Am. Comp. ¶ 72, 73. The deciding official was changed to Mr. Haas as a result. Am. Comp. ¶ 74. The record shows direct or circumstantial evidence that the Agency's reason for employment decision is pretextual. Mr. Haas (Deciding Official) lied that he was ignorant of Kruise's prior EEO activities. The record shows he was well informed of Kruise's prior EEO-protected activity. Am. Comp. ¶ 75-80.
During the relevant time, Kruise had an appeal pending before the Commission regarding the Negotiated Settlement Agreement (NSA)
signed in 2017. Am. Comp. ¶ 89. After the Commission issued Kruise the right to sue on March 8, 2019, Kruise requested a hearing for his EEO complaint (Agency Number ARTYAD18JUL03184) on March 18, 2019, Agency terminated him effective March 20, 2019. Am. Comp. ¶ 80, 86, 89. Plaintiff's employment termination mooted his ability to file a lawsuit to void the NSA and get repromoted under the EEO complaint Agency Number ARTYAD18JUL03184 (Appeal pending at EEOC Office of Federal Operations).
Burlington Northern v. Sheila White (2006) established an objective test for retaliation claims: If you are somehow mistreated after voicing a complaint, and if that would make people think twice about speaking up, that is retaliation. Id. at 68. Plaintiff's removal from federal service indeed sent a solid message to the workforce to discourage them from complaining or standing up.
The Agency continued to retaliate against Kruise after he was removed from federal service. They opposed his unemployment compensation application. Am. Comp. ¶ 90; Exhibit 9. As a result, he was denied unemployment compensation and the additional $300/week in Federal Pandemic Unemployment Compensation. As a former federal employee, Kruise was still protected from adverse action by the Agency. See Robinson v. Shell Oil Company 519 U.S. 337, 346 (1997). "[T]he anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). ("[T]he Burlington Northern standard [applies] to retaliation claims under the Rehabilitation Act as well as Title VII."). Rather, "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." [Emphasis added] Id. at 63, 126 S.Ct. 2405. The three essential elements of a claim of retaliation are present.(Doc. 22, pp. 17-21) (emphasis in original).
To establish a prima facie case of retaliation, Plaintiff must demonstrate that: (1) Plaintiff engaged in activity protected by Title VII; (2) Defendant took an adverse employment action against Plaintiff; and (3) there was a causal connection between Plaintiff's participation in the protected activity and the adverse employment action. Wilkerson v. New Media Technology Charter School Inc., 522 F.3d 315, 320 (3d Cir. 2008); Houlihan v. Sussex Technical Sch. Dist., 461 F.Supp.2d 252, 259 (D. Del. 2006) (“The elements required to establish a claim of retaliation under the Rehabilitation Act are the same as those required for a claim of retaliation under Title VII.”). Defendants argue that Plaintiff has not pleaded enough facts in his amended complaint to establish a prima facie case. Plaintiff disagrees.
In his amended complaint, Plaintiff alleges that in August 2018 he filed a different EEO complaint related to an illegal re-promotion of employee Paulette Vadovsky. (Doc. 15, ¶ 80). For the purposes of the pending motion, no party appears to dispute that Plaintiff has pleaded enough facts to satisfy the first element of his claim (engaging in protected activity). Plaintiff also alleges that he was removed from his position on March 20, 2019. (Doc. 15, ¶ 9). For the purposes of the pending motion, no party appears to dispute that Plaintiff has pleaded enough facts to satisfy the second element of his claim (adverse employment action).
Defendants argue that Plaintiff has not pleaded enough facts to show a causal connection between the August 2018 EEO complaint and Plaintiff's March 20, 2019 removal from service. To meet the third element of a prima facie claim of retaliation under Title VII or the Rehabilitation Act, a plaintiff must plead facts showing discovery is likely to lead to evidence of “either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Boyer v. City of Phila., No. 13-6495, 2015 WL 9260007 at *3 (E.D. Pa. Dec. 17, 2015) (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
Based on the allegations in the amended complaint, approximately three months passed between the date Plaintiff filed the August 2018 EEO complaint and the date Plaintiff was placed on leave. Approximately seven months passed between the date Plaintiff filed his August 2018 EEO complaint and the date he was removed from service. The three to seven month period of time is not an unusually suggestive temporal proximity. See e.g. Blakney v. City of Phila, No. 126300, 2013 WL 2411409 at *4 (E.D. Pa. June 4, 2013) (collecting cases that suggest a period of several months is not unusually suggestive temporal proximity).
“[I]n cases where temporal proximity is not ‘unusually suggestive' of retaliatory motive, the Third Circuit has demanded further evidence to substantiate a causal connection.” Id. at 4 (quoting McCloud v. United Parcel Serv. Inc., 543 F.Supp.2d 391, 401-02 (E.D. Pa. 2008)). “Such other evidence may include, but is not limited to, a ‘pattern of antagonism' by the employer that could link the adverse action with Plaintiff's complaint.” Id. Plaintiff argues that he has pleaded the “link” based on his allegation that some of the individuals who investigated the August 2018 EEO complaint were also involved in the investigation of the complaints filed against Plaintiff that resulted in Plaintiff's removal. It does not appear that any of the individuals doing the investigating were involved in the allegedly inappropriate re-promotion Plaintiff wrote about in the August 2018 EEO complaint or in the November 2018 incident that resulted in Plaintiff's removal from service. Accordingly, I find that Plaintiff has failed to plead enough facts to meet the third element of his retaliation claim in Count III. Therefore, Count III of the amended complaint should be dismissed.
F. Plaintiff's Request For Leave To File a Second Amended Complaint Should be Denied
In terms of the substantive changes in the proposed second amended complaint, Plaintiff seeks to add the following language to Count III of the amended complaint:
“Most importantly, the approving disciplinary authority (Tobyhanna Army Depot Legal Office) was fully aware of Kruise's prior and pending EEO complaints when he was considered for removal.”(Doc. 25-2, ¶ 79).
“The Agency management officials retaliated against Kruise for his prior EEO activity. While Kruise was being considered for removal, he had an EEO complaint pending at the EEOC (Agency No.ARCECOM17JUL02738, Denied of Overtime). The approving disciplinary authority (Tobyhanna Army Depot Legal Office) was fully aware of Kruise's Denied of Overtime EEO complaint because they represented the Agency at the EEOC hearing held on June 30, 2021.” (Doc. 25-2, ¶ 87).
“The Agency management officials retaliated against Kruise for his prior EEO activity. While Kruise was being considered for removal, he had an EEO complaint pending at the EEOC (Agency numbers ARTYADMAR 00987; ARTYAD15DEC04850, Negotiated Settlement Agreement Appeal).”(Doc. 25-2, ¶ 88).
Defendants argue that granting leave to amend Count III would be futile because, even with the changes, Plaintiff's Count III of the proposed second amended complaint would still be dismissed. Specifically, Defendants argue:
Kruise's proposed factual amendments, which seeks to implicate the Legal Office, are wholly conclusory and thus cannot be accepted as true for the purposes of analyzing the sufficiency of his complaint. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (holding “threadbare recitals” and “conclusions of law” are not entitled to assumption they are true). Specifically, Kruise asserts that the legal office was the “approving disciplinary authority” and was handling two of Kruise's EEO claims at the time he was being considered for removal from his position. See Prop. Am. Compl. (Doc. No. 25-2) ¶¶ 79, 87-88.
Kruise's newly proffered allegations are legally insufficient for a variety of reasons. First, he offers no factual basis for his contention that the Legal Office was the “approving disciplinary authority” for his removal. Tobyhanna's Legal Office does not have disciplinary authority over Kruise, as he does not work in that office. Iqbal, 556 U.S. 662, 681 (noting “given more likely explanations, conclusory [allegations of wrongdoing] do not plausibly establish [an improper] purpose”). Indeed, in his proposed Second Amended Complaint,
Kruise acknowledges that Robert Haas decided to remove him, not the Legal Office. See Prop. Am. Compl. (Doc. No. 25-2) ¶ 37.
Second, Kruise fails to identify a person at the Tobyhanna Legal Office who allegedly retaliated against him. He merely assumes-and asks the Court to do the same-that some unnamed person in the office retaliated against him by surreptitiously acting to secure Kruise's removal. Likewise, Kruise presumes, without any factual support, that any legal advice provided by a lawyer to management officials included a specific recommendation to remove Kruise.
Third, even accepting for the sake of argument, that someone at the Legal Office advised management on the issue of Kruise's removal from the federal service, Kruise offers no facts to demonstrate that it was the same lawyer who handled the defense of Kruise's EEO claims or that any information on the subject was shared between the two. Indeed, even if it is assumed that a lawyer advising management on Kruise's removal had knowledge of his EEO activity, that knowledge, by itself, is not support a plausible claim of retaliation. It is well established that “an individual's mere knowledge of a plaintiff's involvement in protected activity is not sufficient to establish that the individual harbored discriminatory animus.” Macknet v. Univ. of Pa., No. 15-5321, 2017 U.S. Dist. LEXIS 148948, at *18-19 (E.D. Pa. Sep. 14, 2017).
Fourth, Kruise's attempt to insert claims involving the Legal Office at this stage are barred by his failure to raise his claim administratively. Plaintiff filed his EEO complaints and related documents with the Court (see Doc. No. 2) and none reflect a claim alleging wrongdoing on the part of the Legal Office. Nor does Kruise allege, as he must, that he exhausted such a claim. The “obligation [to plead exhaustion of administrative remedies] is a condition precedent to filing suit under Title VII and must be pled in the plaintiff's complaint.” Saleski-Shingara v. VNA Health Sys., No. 4:14-CV-00085, 2014 U.S. Dist. LEXIS 156782, at *11 (M.D. Pa. Nov. 5, 2014); Fed.R.Civ.P. 9(c). Because Kruise failed to exhaust any claim related to the Tobyhanna Legal Office, his claims are now barred. See Brown v. General Services Admin., 425 U.S. 820, 832 (1976) (holding that federal employees asserting discrimination claims must exhaust their
administrative remedies as a precondition to filing a civil action in federal district court); 42 U.S.C. § 2000e-16(c).
Finally, if this Court were to accept the second amended complaint, the Army would have to refile the same motion to dismiss and file the same brief with some additions to the procedural history of this case. It would be waste of judicial resources to force the Army to refile a motion and brief regarding an amended complaint that is the same as the previous complaint. Rather, this Court should deny this motion and grant the Army's motion to dismiss the amended complaint.(Doc. 27, pp. 5-8).
As discussed above, to plead a retaliation claim, a Plaintiff must plead facts that show a causal connection between the protected activity (filing an EEO complaint about overtime pay) and the adverse employment action (Plaintiff's removal from his position). He has not done so in the proposed second amended complaint. Plaintiff alleges that he filed an EEO complaint about overtime pay-he does not allege when he filed it. He also alleges that the legal department was involved on a hearing related to that EEO complaint on June 30, 2021. Plaintiff was placed on leave on November 29, 2018 and was removed from his position on March 20, 2019. The timing of these events is not unusually suggestive, and he has not pleaded facts that show a causal link between the removal and the EEO complaint about overtime pay.
V. RECOMMENDATION
Accordingly, for the reasons explained herein it is RECOMMENDED that:
(1) Defendants' Motion to Dismiss (Doc. 18) be granted in part and denied in part.
a. Plaintiff's retaliation claim in Count III of the amended complaint should be DISMISSED.
b. Plaintiff's Bivens claim in Count IV of the amended complaint should be DISMISSED
c. Plaintiff's Racial Discrimination / Disparate Treatment claim in Count V of the amended complaint should be PARTIALLY DISMISSED. The claims related to incidents that occurred in 2014 and 2015 should be DISMISSED. The claims related to Plaintiff being placed on leave and his eventual termination should be permitted to proceed.
d. Plaintiff's request for punitive damages should be DISMISSED.
e. All other claims should be permitted to proceed.
(2) Plaintiff's motion to amend (Doc. 25) should be DENIED on the basis of futility. The proposed amendments to Count III fail to state a plausible legal claim.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.