only applicable within the executive branch. Therefore, the provisions of Title VII, § 717 incorporated into the Rehabilitation Act are only those which relate to the executive branch.
The Court finds that "in the executive branch" in § 791 is synonymous with "executive agency" in Title VII, § 717. If this were not true, several anomalous situations would exist. If "in the executive branch" were broader than "executive agency" in Title VII, § 794a would grant to employees remedies that did not exist. For example, if an entity were deemed to be "in the executive branch," then § 794a would grant individuals employed by that entity rights under § 717. But if the same entity were deemed outside the definition of "executive agency," and thus not covered by § 717, the individual would have gained nothing. Conversely, if "executive agency" were held to encompass more organizations than those "in the executive branch," disabled federal workers would have fewer protections than non-disabled employees, a problem which § 794a was designed to remedy.
Title VII, § 717 makes explicit reference to 5 U.S.C. § 105, which defines "Executive agency" as "an Executive department, a Government corporation, and an independent establishment." An "independent establishment" is defined within the Code as "an establishment in the executive branch." 5 U.S.C. § 104. The Smithsonian is neither an executive department nor a government corporation, 5 U.S.C. §§ 101 and 103. Therefore, for Rivera to maintain his suit under § 791, the Smithsonian must be an independent establishment within the executive branch.
In order to determine the status of the Smithsonian within the federal government, some basic information about the structure of the Smithsonian must be considered. The Smithsonian is an instrumentality of the United States, established through the generosity of James Smithson, who bequeathed all his property to the United States to found an "establishment for the increase and diffusion of knowledge among men." 20 U.S.C. § 41. An Act of Congress constituted the Smithsonian from the President, Vice President, Chief Justice of the Supreme Court, and heads of the executive departments. Id. The Board of Regents, composed of the Vice President, the Chief Justice of the Supreme Court, six members of Congress, and nine other citizens selected by joint resolution of Congress, oversee the operation of the Smithsonian. Id. § 42. The Smithsonian receives approximately seventy-five percent of its funding from Congressional appropriation, see Expeditions Unlimited, Etc. v. Smithsonian Institution, 184 U.S. App. D.C. 397, 566 F.2d 289, 296 n.4 (D.C. Cir. 1977), while its private endowment provides the balance of the funds required for its operation. See 566 F.2d at 296 n.3. Most employees of the Smithsonian, like Rivera, are federal civil service employees, see Dong v. Smithsonian Institution, 878 F. Supp. 244, 248 (D.D.C. 1995), although some are paid directly from the Smithsonian's trust funds.
Whether the Smithsonian falls within the executive branch for the purposes of section 791 presents a case of first impression for this Court. This type of inquiry is highly contextual and incapable of resolution using "bright line rules," requiring consideration of the specific entity and statutory language at issue. See Cotton v. Heyman, 314 U.S. App. D.C. 161, 63 F.3d 1115, 1121 (D.C. Cir. 1995); See also Dong, 878 F. Supp. at 248. Looking at the structure of the Smithsonian, there are strong indications that it is not in the executive branch. Cf. Expeditions Unlimited, 566 F.2d at 296 (holding that for purposes of the Federal Tort Claims Act (FTCA) the Smithsonian is an independent establishment of the United States); Dong, 878 F. Supp. at 245 (Smithsonian is subject to the Freedom of Information Act (FOIA) as an "authority of the United States," although FOIA applies specifically to establishments in the executive branch of government); Cotton v. Heyman, Civil Action No. 94-0963 (D.D.C. 1996) (not published in F. Supp.)("not clear that Smithsonian can be classified as an 'executive agency'" under section 717).
The Board of Regents of the Smithsonian includes members from all three branches of government: the Vice President, the Chief Justice of the Supreme Court, and six members of Congress. The Congress also directly appoints the nine civilian members of the Board. In sum, of the seventeen members of the Board of Regents, responsible for the administration of the Smithsonian, fifteen are either members of Congress or are appointed by Congress.
Based on this organization, the Smithsonian could arguably be a legislative entity. Regardless of where the Smithsonian specifically lies within the government, it is at least clear that the Executive does not have the control over the Smithsonian necessary to classify the Institution as "in the executive branch" for purposes of the Rehabilitation Act. It therefore follows that section 791 does not apply to the Smithsonian, and Rivera, whose exclusive remedy as a federal employee is § 791, may not maintain his suit under the Rehabilitation Act. Thus, taking all of the allegations made by Rivera as true, the causes of action under the Rehabilitation Act are necessarily dismissed, because Rivera can prove no set of facts which would allow relief.
III. Plaintiff's Claim Under Title VII
Rivera alleges that he made a complaint of discrimination under Title VII addressed to the defendants in April 1994. He further claims that the defendants unlawfully retaliated against him for making his complaint, in violation of Title VII. At the outset, the Court notes that Title VII makes it "an unlawful employment practice" for an employer to discriminate against an employee because of the employee's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Section 704(a) of Title VII provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . under this subchapter.
42 U.S.C. § 2000e-3.
In order to make a prima facie case for a retaliation claim, a plaintiff must show: (1) he was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took an adverse action against the plaintiff based on the activity; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer. See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996); See also Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993); Sumner v. United States Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990); Manoharan v. Columbia University College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).
All of the prongs of the prima facie case are premised upon the plaintiff engaging in a "protected activity." To meet the requirement of a "protected activity," a plaintiff must oppose an unlawful employment practice. See Reed, 95 F.3d at 1178. In order to satisfy this test, an employee "'need not establish that the conduct he opposed was in fact a violation of Title VII,' but only that he had a 'good faith, reasonable belief' that the underlying employment practice was unlawful." Reed, 95 F.3d at 1178 (quoting Manoharan, 842 F.2d at 593); see also Cosgrove, 9 F.3d at 1039, Sumner, 899 F.2d at 209. A good faith mistake, either of fact or law, regarding the legality of the employer's conduct will not strip the plaintiff of Title VII protection against retaliation. Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410 (S.D.N.Y. 1996); see also Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir. 1994). The reasonableness of the plaintiff's belief that an unlawful employment practice occurred must be assessed according to an objective standard. This standard must be one that makes allowance for the limited knowledge possessed by most Title VII plaintiffs about the bases of their claims. See Moyo, 32 F.3d at 1385-86.
For Rivera's retaliation claim to stand, he must have had a "good faith, reasonable belief that the underlying challenged actions of the employer" are violative of Title VII. Cosgrove, 9 F.3d at 1039; Manoharan, 842 F.2d at 593. Rivera bases his retaliation claim on the complaint that he lodged in April 1994. Upon examination of the complaint, it is clear that Rivera only alleged discrimination on the basis of handicap, specifically his HIV positive status. Although the complaint form has designated areas to allege discrimination on the basis of race, color, religion, or national origin, all of which are proscribed by Title VII, Rivera did not claim any discrimination on these grounds in his complaint. Although the Court does not hold Rivera to the standard of a lawyer in determining the reasonableness of his belief, but only to the standard of a plaintiff with limited knowledge of Title VII, Moyo, 32 F.3d at 1385-86, a belief that the conduct underlying the April 1994 complaint violated Title VII is not reasonable. Quite simply, the complaint alleged discrimination only on the basis of disability, which is not covered at all by Title VII. In his second amended complaint, Rivera argues that he complained about disparaging ethnic comments. The complaint he filed, however, mentions nothing of ethnic discrimination. And while the Court is certain that Rivera believed that the Smithsonian had acted illegally in some capacity, any discussion, knowledge, or familiarity with Title VII would show that Title VII applies only to discrimination based on characteristics other than disability.
Taking everything that Rivera alleges in his complaint as true, Rivera cannot show that his April 1994 complaint was a "protected activity" under Title VII. Accordingly, there is no possibility that Rivera may satisfy the prima facie requirements to state a cause of action for retaliation and his claim under Title VII must be dismissed.
IV. Plaintiff's Claims under the Human Rights Laws of the State of New York and the City of New York
Rivera claims four causes of action under the Human Rights Laws of the State of New York and the City of New York. Rivera brings these causes of action not against the Smithsonian, but against Palau and Dolan in their individual capacities. In these claims, the plaintiff alleges that defendants Palau and Dolan discriminated against him on the basis of his disability and that the same defendants took retaliatory measures against him based on his opposition to this discrimination. Because the City and State Human Rights Laws upon which Rivera seeks to state a claim are substantively similar, the causes of action will be analyzed together.
In Brown v. General Services Administration, 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976), the Court held that section 717 of Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment." However, Title VII does not proscribe discrimination on the basis of disability, which is the basis for Rivera's claim. Rather, section 501 of the Rehabilitation Act (29 U.S.C. § 791) protects disabled federal workers from discrimination, and § 794a provides that individuals aggrieved by violations of § 791 are given the rights set forth in section 717 of Title VII.
Logically, the holding of Brown is applicable to federal employees who claim discrimination on the basis of disability, and § 794a provides the exclusive judicial remedy for Rivera's claim. See DiPompo, 708 F. Supp. at 547; see also Lassiter v. Reno, 885 F. Supp. 869, 872-73 (E.D.Va. 1995), aff'd, 86 F.3d 1151 (4th Cir. 1996), cert. denied, 136 L. Ed. 2d 712, 117 S. Ct. 766 (1997) (dismissing state human rights claims made by disabled federal employee).
Plaintiff contends that Palau and Dolan may be sued in their individual capacities under the human rights laws. The plaintiff in DiPompo similarly sought to bring claims under the Rehabilitation Act and against individual defendants under the New York Human Rights Law. See 708 F. Supp. at 547. Judge Mukasey dismissed the human rights claims, finding that if the plaintiff were allowed to proceed, he could circumvent Brown's holding that a federal employee's sole remedy for employment discrimination is section 717 of Title VII. See id. This Court concurs with DiPompo on this point. Accordingly, Rivera may not sue defendants Palau and Dolan individually, and the discrimination claims under the state and local human rights laws are dismissed.
V. Plaintiff's Claim for Invasion of Privacy
Rivera's final cause of action alleges that he has suffered the tort of invasion of privacy, because defendants Palau and Dolan each told third parties of Rivera's HIV status without his consent. Rivera brings this claim against the United States under the FTCA, 28 U.S.C. §§ 1346, 2671-2680, and against Palau and Dolan individually. In his second amended complaint, Rivera cites to § 2784 of the Public Health Law of the State of New York as the basis for his claim.
The FTCA has several jurisdictional requirements that a plaintiff must meet before the United States consents to suit in federal court. See 28 U.S.C. § 2675. Specifically, § 2675(a) states:
An action shall not be instituted upon a claim against the United States for money damages . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate federal agency.
Section 2675(b) provides:
Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency . . . .
The Second Circuit has interpreted the language of 2675(a) to "require that the Notice of Claim provide sufficient information both to permit an investigation and to estimate the claim's worth." Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983). The Second Circuit also has held that § 2675(b) includes a requirement that the request for damages in the administrative claim "state a sum certain." Adams by Adams v. United States Dep't of Housing and Urban Development, 807 F.2d 318, 320-21 (2d Cir. 1986); See also Keene Corp., 700 F.2d at 841-42; Marchese v. United States, 781 F. Supp. 241, 245 (S.D.N.Y. 1991). Furthermore, "the requirement that the claim state a specific dollar sum . . . is jurisdictional and cannot be waived." Adams by Adams, 807 F.2d at 321.
In April 1994, Rivera filed an employment discrimination claim with the Smithsonian. In that document, he complained that individuals (he did not mention Palau and Dolan by name) told others about his HIV status. The parties disagree as to the requirements of § 2675(a). Plaintiff argues that his April 1994 discrimination complaint serves as a proper notice of claim to the Government. The Government contends that Rivera has not exhausted his administrative remedies, and has produced evidence that Rivera has never filed a tort claim with the Smithsonian.
Because Rivera's cause of action is precluded on other grounds, this Court need not determine if the filing of an employment discrimination claim gives notice to the proper federal agency, as required by § 2675(a).
Even assuming arguendo that Rivera's April 1994 complaint serves as a proper notice of claim, he still does not meet the standard of § 2675(b) that his administrative claim state a sum certain. After examination of Rivera's complaint, it is clear that not only does Rivera fail to state a sum certain as damages, but he fails to mention any monetary value at all. The Smithsonian had no ability to properly estimate the worth of the claim, which is one of the principal concepts behind § 2675. Because Rivera has failed to comply with the requirements of § 2675, this Court lacks jurisdiction to hear his cause of action against the United States, and that portion of the claim is dismissed.
Rivera also brings this claim under New York law against Palau and Dolan as individuals. This Court determines, supra at 20-21, that Title VII is Rivera's only remedy for employment discrimination, and dismisses claims under the local human rights laws. The present claim, however, is not for employment discrimination, but for the tort of invasion of privacy. In Westfall v. Erwin, 484 U.S. 292, 300, 98 L. Ed. 2d 619, 108 S. Ct. 580 (1988), the Supreme Court held that a federal employee is immune from state-law tort liability only upon a showing that the challenged action was within the outer perimeter of his or her duties and was discretionary in nature. In response to this ruling, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679, which states in section (d)(1) that:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
At this time, there has been no certification by the Attorney General that defendants Palau and Dolan were acting within the scope of their duties when the alleged tort occurred.
This cause of action, however, arises under New York law, and this Court has only supplemental jurisdiction over the claim. 28 U.S.C. § 1367(a).
Since the Court dismisses all other claims by Rivera, the situation exists where the Court could be deciding a New York state claim. 28 U.S.C. § 1367(c) provides that "the district courts may decline to exercise supplemental jurisdiction over a claim if . . . (3) the district court has dismissed all claims over which it has original jurisdiction . . . ." As this motion has occurred at an early stage in the proceedings (by stipulation, the Government has yet to file its answer to the second amended complaint), this court declines to exercise jurisdiction over Rivera's tort action against Palau and Dolan, and the claim is dismissed. See Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996) (district court properly declined to exercise supplemental jurisdiction over state claims when federal claims dismissed early in the proceedings).
For the reasons stated above, the defendants' motion for judgment on the pleadings is HEREBY GRANTED.
New York, New York
October 7, 1997
Peter K. Leisure