Opinion
No. 03 CV 403 (SJ).
August 12, 2004
VINCENT T. DUNCAN, Richmond Hill, New York, Pro Se.
ROSLYNN R. MAUSKOPF, United States Attorney, Eastern District of New York, By: Sharon L. Volckhausen, Esq., Attorney Defendant.
MEMORANDUM AND ORDER
Plaintiff Vincent Duncan ("Plaintiff") filed suit against Defendant Tommy G. Thompson, Secretary of the United States Department of Health and Human Services, alleging racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Currently before this Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the foregoing reasons, Defendant's motion for summary judgment is granted in part and denied in part.
As an initial matter, the Court denies Plaintiff's motion for Judge Johnson to recuse himself from the case.
FACTUAL AND PROCEDURAL BACKGROUND
On May 7, 2001, the Food and Drug Administration ("FDA") received a copy of a document entitled "EEO/Civil Complaint" from Plaintiff, which appeared to have been filed in this court. (Decl. of AUSA Sharon L. Volckhausen, Ex. A.) After Plaintiff informed the FDA that the document constituted his formal EEO complaint, the FDA acknowledged receipt of the complaint, and assigned it agency number FDA-R-044-01. (Id., Ex. B.) In the complaint, Plaintiff asserted two claims:
(1) On January 19, 2001, Plaintiff became aware that the FDA did not have an Agency Standard/Scientific Course Requirement for the Consumer Safety Officer ("CSO"), 696 series, position. Accordingly, Plaintiff believed that the FDA's previous denial of the three credits for his completed course in HIV/AIDS Public Health Implication was an act of retaliation. In addition, that this denial caused Plaintiff to be denied numerous opportunities to be qualified to compete for CSO positions. (2) That on January 31, 2000, Plaintiff's request for funding for a three-credit science course at York college was denied.
(Id.)
After an initial dismissal of one of Plaintiff's claims, the FDA accepted both claims for investigation. (Id., Ex. C.) On January 24, 2003, Plaintiff filed the instant suit. On May 29, 2003, Plaintiff filed a Second Amended Complaint, raising additional allegations of discrimination and retaliation.
Defendant moves to dismiss Plaintiff's complaint without prejudice because it is not a short and plain statement of his claims under Rule 8 of the Federal Rules of Civil Procedure. Defendant also moves to dismiss Plaintiff's additional allegations that were not included in his EEO complaint because he failed to exhaust his administrative remedies pursuant to Fed.R.Civ.P. 12(b)(6). Alternatively, Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56.
DISCUSSION
I. Rule 8 dismissal
Rule 8 requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Given that the principal function of pleadings under the Federal Rules of Civil Procedure is to give the adverse party fair notice of the claim so as to enable him to answer and prepare for trial, the statement should be plain and short. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The Second Circuit has insisted that "complaints be concise 'because unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.'" Wynder v. McMahon, No. 02-9101, 2004 U.S. App. Lexis 3906, at *20 (2d Cir. March 1, 2004).
When a complaint fails to comply with this requirement, a district court has authority to strike any portions that are redundant or immaterial, or to dismiss the complaint. See Salahuddin, 861 F.2d at 42. Dismissal, however, is usually reserved for only those cases in which "the complaint is so confused, ambiguous, vague, or unintelligible that its true substance, if any, is well disguised." Id. If a district court dismisses the complaint for failure to comply with Rule 8(a), it should generally give the plaintiff leave to amend. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).
Defendant argues that Plaintiff's complaint should be dismissed because it is "42 pages long, containing over 100 paragraphs of factual allegations and legal argument." (Def.'s Mem. of Law at 3.) Defendant further argues that Plaintiff's complaint should be dismissed because he asserts a "laundry list of additional complaints without offering any facts in support." (Id.) Overall, Defendant avers that "Plaintiff's general allegations of mistreatment are devoid of any specific facts, and thus, are too ambiguous and vague to give defendant adequate notice of the allegations." (Id. at 4.) The Court rejects Defendant's argument. Although Plaintiff's complaint is lengthy, it does contain specific facts supporting his allegations of retaliation and discrimination.
II. Failure to Exhaust Administrative Remedies
Defendant argues that Plaintiff's allegations of discrimination and retaliation, other than the two claims presented to the EEOC, must be dismissed for failure to exhaust administrative remedies pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. In addition to their motion papers, both parties have submitted exhibits and affidavits outside of the pleadings, as well as Local Rule 3(g) statements. Thus, the Court will review Defendant's motion as one for summary judgment.
When both parties in a particular action introduce affidavits and exhibits outside of the pleadings in support of and in opposition to a motion to dismiss, it is appropriate for the court to consider it as a motion for summary judgment. See Equal Employment Opportunity Commission v. New Cherokee Corporation, 829 F.Supp. 73 (S.D.N.Y. 1993).
A moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on the movant to establish the absence of any genuine issue of material fact.Celotex Corp., 477 U.S. at 323; see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
Once the movant has made a properly supported motion for summary judgment, the burden shifts to the nonmoving party to present "significantly probative" supporting evidence showing that there is a material factual issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary judgment should be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322;see also Sim v. New York Mailers' Union No. 6, 166 F.3d 465, 469 (2d Cir. 1999).
Prior to bringing suit under Title VII, a federal government employee must timely exhaust the administrative remedies at his disposal. See Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001) (quoting Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1998) (quotations omitted). Regulations promulgated by the Equal Employment Commission ("EEOC") establish the applicable administrative procedures that a federal employee must exhaust prior to filing suit. Belgrave, 254 F.3d at 386. The EEOC regulations require that the aggrieved party, inter alia, (1) consult with a counselor at the relevant agency's Equal Employment Office ("EEO") within 45 days of the alleged discriminatory act, and if the matter is not resolved after a mandatory counseling period, (2) file a formal written administrative complaint within 15 days of receipt of the EEO counselor's notice of final interview and a right to file a formal complaint. Id. (citations omitted). The employee may then file a civil action (i) within 90 days of notice of a final agency decision on his or her EEO complaint, or (ii) after 180 days from the filing of the EEO complaint if the agency has not yet rendered a decision. Id.
As stated above, subsequent to the filing of his EEO complaint and initial civil complaint, Plaintiff filed a Second Amended Compliant. As summarized by Defendant, Plaintiff asserted the following additional claims of discrimination and retaliation:
1) after January 27, 2003, Plaintiff's supervisor, Connie Gallagher began treating Plaintiff with heightened hostility and abuse.
(2) on February 13, 2002, Plaintiff was subjected to violence in the workplace when Connie Gallagher threatened his physical safety.
(3) On March 21, 2003, Connie Gallagher proposed Plaintiff's suspension for fourteen days based on reporting the attack of him in the workplace.
(4) On April 7, 2003, Defendant denied Plaintiff's promotion to grade GS-12.
(5) Plaintiff was denied all opportunities for a transfer from the FDA New York District/Imports Operation Branch to the FDA New York District Domestic Investigation Branch.
(6) Judy Blumenthal, staffing specialist for the FDA, perjured herself in discussing why she disqualified certain credits Plaintiff sought to have approved for science courses he attended.
(7) From January 2001 to the present, Plaintiff was denied all forms of specialized training/career advancement/details or a transfer to the Domestic Investigation Branch.
(8) Plaintiff was denied CSO positions and vacancy announcements "FDA-10-057, 15061,057, 053337,057, for lack of thirty science credits.
(9) Plaintiff was denied opportunities to transfer to Richmond and Norfolk, Virginia because the vacancy announcements were cancelled.
With little factual support, Plaintiff also alleges that his First and Thirteenth Amendment rights were violated and that he was denied sick leave.
Defendant contends that summary judgment should be granted because Plaintiff never evoked the EEO process regarding the allegations not included in his EEO complaint. Plaintiff argues that he was not required to exhaust his administrative remedies for the claims not included in his EEO complaint because they are reasonably related to the exhausted claims. Defendant avers that Plaintiff's allegations regarding the February 13, 2002, January 27, 2003, March 21, 2003, and April 7, 2003 incidents, as well as the undated denials of transfer opportunities and CSO positions, do not relate to conduct that was involved in the two properly exhausted claims. Lastly, Defendant contends that any allegations that occurred before the filing of Plaintiff's EEO complaint should not be considered.
The Court grants summary judgment with respect to Plaintiff's allegations that he was denied (1) all opportunities for a transfer from the FDA New York District/Imports Operation Branch to the FDA New York District Domestic Investigation Branch, and (2) all forms of specialized training/career advancement/details or a transfer to the Domestic Investigation Branch. The Court further grants summary judgment with respect to any alleged incident that occurred prior to May 2001. See Marlarkey v. Texaco, Inc., 983 F.2d 1204, 1209 (2d Cir. 1993) (noting that a claim must arise only after the EEOC complaint has been filed to be reasonably related to an EEOC charge). As such, Plaintiff's claims regarding the alleged false declaration submitted by Judy Blumenthal in August 2001 and the alleged denials of training opportunities that occurred before May 7, 2001 cannot be considered.
The Court likewise grants summary judgment with respect to Plaintiff's allegations that Defendant violated his First and Thirteenth Amendment rights.
With respect to the February 13, 2002, January 27, 2003, and March 21, 2003 incidents, the Court finds that a genuine issue of material fact exists as to whether these unexhausted claims are reasonably related to the two exhausted claims. In his complaint, Plaintiff alleges that Connie Gallagher ("Gallagher") began retaliating against him after he informed her about the EEO complaint and/or the civil complaint filed in this Court. The Second Circuit is clear that "[a] claim 'alleging retaliation by an employer against an employee for filing' a discrimination charge is one type of claim we have recognized as 'reasonably related' to the underlying discrimination charge." Legnani v. Altitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d. Cir. 2001) (quoting Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999)).
In this case, the record is unclear whether Gallagher retaliated against him because he filed the EEO complaint and/or the instant action. With respect to allegations of mistreatment by Gallagher, in his complaint, Plaintiff avers that "he first began to experience hostility and abusive treatment from his supervisor after he initiated his EEO complaint in 2000, and Gallagher was named and interviewed by an EEO investigator." (Second Amended Complaint, at 14.) Plaintiff further avers that "[o]n January 27, 2003, [he] informed Gallagher that he had filed a civil action in the United States District Court and [Gallagher] was named. Gallagher attacked [him] less than two weeks later." (Id.) The record indicates that Plaintiff filed the underlying EEO complaint in this case on May 7, 2001. Gallagher is also not a named party in this action. Discovery will reveal whether there is any connection between the alleged incidents of retaliation committed by Gallagher and the filing of the EEO complaint and/or the instant suit.
The Court also finds that a genuine issue of material fact exists as to whether the following claims are related to the two exhausted claims: (1) Plaintiff's denial of a promotion to grade GS-12, (2) Plaintiff's denial of sick leave, and (3) Plaintiff's allegation that he was subjected to a hostile work environment. Discovery will also reveal whether there is any connection between these allegations and the filing of the EEO complaint and the instant suit.
Lastly, Plaintiff's allegation that he was denied CSO positions and vacancy announcements for lack of the thirty science credit requirement, as long as the denials did not occur prior to the filing of the EEO complaint, survive summary judgment as it relates to his exhausted claims.
CONCLUSION
Defendant's motion for summary judgment is granted in part and denied in part. The parties should report to the magistrate assigned to the case for further discovery.