United States District Court, W.D. New York
February 18, 2004.
SHARON B. POLLOCK, Plaintiff
TOM RIDGE, Secretary of the Department of Homeland Security, et al., Defendants
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff is a former employee of defendant The Barbosa Group, a
private employer who, at all relevant times herein, provided
administrative and other services at the Buffalo Detention Center ("BDC")
pursuant to a government services contract ("the contract") with the
Immigration and Naturalization Service ("INS"). Plaintiff commenced this
action against defendants*fn1 asserting various federal and state law
claims based on her employment at and termination from the BDC.
Plaintiff alleges that defendants discriminated against her on account of
her gender and wrongfully terminated her without cause or due process.
The defendants moved to dismiss and/or for summary judgment (Dkt. ##32
and 37) and plaintiff cross-moved for relief (Dkt. #50). The Court ruled
on several of these motions, from the bench, after oral argument and
those decisions were later memorialized in an order (Dkt. #73) filed
April 9, 2003. This Decision and Order addresses the remaining portions
of defendants' motions and plaintiff's cross-motion. For the reasons that
follow, the parties' motions are granted, in part, and denied, in part.
I. Motion to Dismiss Standards
Defendants move to dismiss plaintiffs complaint pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and
12(b)(6) for failure to state a claim. In the context of a Rule 12(b)(1)
motion, plaintiff has the burden of establishing the existence of subject
matter jurisdiction by a preponderance of the evidence. Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). The Court must accept as
true all material factual allegations in the complaint, and can consider
evidence outside the pleadings. See Makarova, 201 F.3d at 113.
In deciding a motion to dismiss pursuant to 12(b)(6), the Court
likewise must draw all reasonable inferences in favor of plaintiff and
accept as true all factual allegations in the complaint. "A court may
dismiss a complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); see
also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002); Phillip v.
Univ. of Rochester,
316 F.3d 291 (2d Cir. 2003). The issue is not whether plaintiff
ultimately will prevail but whether she is entitled to offer evidence to
support her claims. Swierkiewicz, 524 U.S. at 512 (reaffirming the
simplified notice pleading requirement of Fed.R.Civ.P. 8 that relies on
the rules of discovery and motions for summary judgment to define factual
issues and dispose of unmeritorious claims). "Thus, a complaint is
sufficient if it gives `fair notice of what the plaintiffs claim is and
the grounds upon which it rests.'" Phelps v. Kapnolas, 308 F.3d 180, 186
(2d Cir. 2002) (quoting Swierkiewicz, 524 U.S. at 512).
II. Plaintiff's Cross-Motion to Exclude Matters Outside the Pleadings
Initially, the Court addresses plaintiff's cross-motion to exclude from
consideration on defendants' motions certain documents that are outside
the pleadings or, in the alternative, to require that any documents
considered be presented in admissible form and fully authenticated by
someone with personal knowledge. (Dkt. #50-1).
The federal defendants attached two documents to their memorandum of
law a complaint letter dated February 29, 2000 from plaintiff to
the INS and an alleged copy of the contract (which exceeds 200 pages)
between The Barbosa Group and the INS. (See Dkt. #32 "Exhibits" 1 and
2). The Barbosa defendants incorporate these documents by reference and
rely on them in support of their motion. (Dkt. #38 at p.3). The documents
have not been presented to the Court as true and accurate copies of what
they purport to be, and neither is attached to or referred to in an
affidavit from someone who attests to its authenticity or accuracy. In
fact, the documents are not mentioned at all in the three paragraph
affidavits each attorney filed in support of the defendants' motions.
(Dkts. ##33 and 39). Nevertheless, defendants argue (in footnotes in
their memoranda of law) that
this Court can rely on and refer to the documents on the motion to
dismiss because both are "integral" to the plaintiff's complaint.
Plaintiff argues that the Court cannot consider these documents in
deciding the motions to dismiss because they are matters outside the
pleadings which were not quoted in or otherwise integral to the
complaint. Further, plaintiff asks that if the Court finds that the
documents are integral to the complaint, that it first obtain "fully
authenticated" copies. Plaintiff takes issue with the accuracy of the
contract filed by the federal defendants and asserts that it is different
in some material respect to the contract that defendants produced to her
during discovery. (Dkt. #50, at p. 6-8).
If the parties present materials outside the complaint and the Court
does not exclude them, the Court must treat a 12(b)(6) motion as one for
summary judgment pursuant to Fed.R.Civ.P. 56 and give all parties a
reasonable opportunity to present all material made pertinent to such a
motion. See Fed.R.Civ.P. 12(b). For purposes of this rule, the complaint
is considered to include any documents incorporated in it by reference,
annexed to it as an exhibit, or "integral" to it because it "`relies
heavily upon its terms and effect.'" Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002) (quoting Int'l Audiotext Newwork, Inc.
v. Am. Tel & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).
I agree that I should not consider these documents on a motion to
dismiss. Chambers, 282 F.3d at 155 ("Consideration of extraneous material
in judging the sufficiency of a complaint is at odds with the liberal
pleading standard of Federal Rule of Civil Procedure 8(a)(2). . . . Also,
when a district court considers certain extra-pleading materials and
excludes others, it risks depriving the parties of a fair adjudication of
the claims by examining an incomplete record."). I do not find the
letter or contract to be "integral" to the complaint, and the cases upon
which defendants rely are inapposite. Plaintiffs complaint is not replete
with references or quotations to either document. See, e.g., Chambers,
282 F.3d at 153; San Leandro Emergency Med. Group Profit Sharing Plan v.
Philip Morris Cos., Inc., 75 F.3d 801, 808-809 (2d Cir. 1996). In
addition, that plaintiff may have had possession of a document at the
time the complaint is drafted is not enough. Chambers, 282 F.3d at 153.
Because the parties are still engaging in discovery, conversion to a
motion for summary judgment is inappropriate at this time. In any event,
the Court cannot consider the documents in the manner in which they were
presented. A memorandum of law is not the appropriate vehicle for putting
evidence before the Court. For this additional reason, I do not consider
Therefore, plaintiffs motion to exclude matters outside of the
pleadings (Dkt. #50-1) is granted. Her motion for alternative relief
(Dkt. #50-2) is denied as moot.
III. The Defendants' Motions to Dismiss
A. Title VII Claim Failure to Exhaust Administrative Remedies
The federal defendants seek dismissal of plaintiff's Title VII claim
based on her failure to exhaust administrative remedies pursuant to
42 U.S.C. § 2000e-16 and 29 C.F.R. § 1614.105. The federal
defendants claim that plaintiff did not comply in a timely manner with
the two-step exhaustion process for discrimination claims against the
federal government.*fn2 In support of their
motion, they rely on an allegation in plaintiff's federal complaint that
she filed a written grievance with the government in February 2000
concerning alleged discrimination, which they argue was untimely, as it
was 320 days after plaintiff was terminated. See
29 C.F.R. § 1614.105(a)(1).
Plaintiff alleges in her complaint that she filed a written grievance
with the federal defendants in February 2000. Plaintiff claims that
"although she was reassured that her complaint would receive appropriate
follow up and attention, the [federal] defendants have failed and
continue to fail to do so." (Dkt. #1, ¶ 3). In her opposition papers,
plaintiff argues that the time period for exhausting her administrative
remedies should be equitably tolled or waived because: (1) the defendants
failed to notify her of the time limits in which to seek informal
counseling and exhaust her administrative remedies, as required by
29 C.F.R. § 1614.105(a)(2);*fn3 and (2) any effort she could have
undertaken to exhaust her claims would have been fufile, given the
federal defendants' consistent position that she is not a federal
employee. Finally, plaintiff opposed dismissal pursuant to 12(b)(6) on
the grounds that she is entitled to discovery on the exhaustion issue and
to support her claims based on correspondence from the INS concerning her
I agree that, under the circumstances of this case, the issue of
whether plaintiff timely exhausted her administrative remedies cannot be
decided as a matter of law in the context of a motion to dismiss. There
are issues of fact regarding what steps plaintiff took to exhaust her
administrative remedies, whether those steps were considered by the
agency to be timely, and whether the government's actions (or inaction)
could provide a basis here for noncomplaince with the exhaustion
The requirement that plaintiff first exhaust her administrative
remedies is treated as an affirmative defense that is subject to
equitable tolling, estoppel, and waiver. Irwin v. Dep't of Veterans
Affairs, 498 U.S. 89, 95-96 (1990); Briones v. Runyon, 101 F.3d 287, 290
(2d Cir. 1996); see also Boos v. Runyon, 201 F.3d 178, 182 (2d Cir. 2000)
("[T]he exhaustion requirement, while weighty, is not jurisdictional.").
Here, plaintiff's complaint and her papers in opposition allege
circumstances that could, in theory, warrant application of one of these
doctrines. For instance, the time period for filing a complaint "shall"
be tolled if plaintiff was not notified of time limits and did not
otherwise know of them. See 29 C.F.R. § 1614.105(a)(2). Moreover,
under certain circumstances, the government can waive its right to argue
that plaintiff did not timely comply with the exhaustion requirement. See
Briones, 101 F.3d at 291.
The federal defendants argue that plaintiff is not entitled to an
equitable toll because she was represented by counsel during the relevant
time period. Although this may be a strong argument as to why no
equitable relief should be granted, see Chapman v. Choice Care Long
Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002), it
cannot be said at this stage that plaintiffs obligation to pursue
informal counseling with the INS within 45 days of her termination was
clear. In fact, the federal defendants have taken the position on this
motion and in other pleadings that
plaintiff was not a federal employee. It is unclear from the record
whether this is a position that it also took with plaintiff at the time
of her termination or her grievance. If so, the federal defendants may
have waived their right to insist that plaintiff comply with the
administrative regulations. It also unclear whether the EEOC or the
agency considered plaintiff's February 29, 2000 complaint timely. See
Briones, 101 F.3d at 290-91. These facts would be material in determining
whether plaintiff failed to timely exhaust her administrative remedies.
Ultimately, when the record is developed more fully, the federal
defendants may be entitled to summary judgment on this issue. Plaintiff
bears the burden of proving that equitable reasons exist for
noncompliance with the exhaustion requirement. See Boos, 201 F.3d at
185. As such, she should be permitted to discovery on the issue.
Therefore, the federal defendants' motion to dismiss plaintiff's Title
VII claim for failure to exhaust administrative remedies is denied.
Pauling v. Sec. of the Dep't of the Interior, 160 F.3d 133, 134-135 (2d
Cir. 1998) (reversing summary judgment where issues of fact exist
regarding whether former federal employee was placed on notice of the
45-day time period in which to initiate informal counseling); see also
Briones, 101 F.3d at 290 (reversing summary judgment based on the failure
to timely exhaust administrative remedies where government waived its
right to argue that administrative complaint was untimely); Bayer v.
U.S. Dep't of Treasury, 956 F.2d 330, 334 (D.C. Cir. 1992) (issues of
fact precluded summary judgment based on failure to exhaust
administrative remedies where plaintiff alleged that the agency failed to
notify him of the time limits as outlined in the regulations).
B. Breach of Contract Claims
1. The Barbosa Defendants' Motion to Dismiss
For her seventh claim based on third party beneficiary breach of
contract, plaintiff alleges that The Barbosa Group and the INS entered
into a contract that required, in pertinent part, that The Barbosa Group
would provide certain medical and other benefits to plaintiff and other
employees of the BDC. Plaintiff asserts that she was a third party
beneficiary of the contract, and that defendants have failed to provide
those benefits to her. The Barbosa defendants move to dismiss this claim
arguing that plaintiff cannot show that she was an "intended," rather
than merely an "incidental," beneficiary of the contract.
The parties agree that to prevail on a claim as a third party
beneficiary under a contract, plaintiff must show: (1) the existence of a
valid contract between other parties; (2) that the contract was intended
for plaintiff's benefit; and (3) that" [t]he benefit to the third party
must be' sufficiently immediate, rather than incidental, to indicate the
assumption by the contracting parties of a duty to compensate [the third
party] if the benefit is lost.'" Muhlrad v. Mitchell, No. 96 Civ. 3568,
1997 WL 182614, *5(S.D.N.Y.Apr. 14, 1997) (quoting Alicea v. City of New
York, 145 A.D.2d 315 (1st Dep't 1988)). Plaintiff alleges that her status
as an employee under the contract makes her an intended beneficiary
sufficient to satisfy this last element.
Although the Court has grave doubts about whether plaintiff ultimately
will prevail on this claim, see Alicea, 145 A.D.2d at 318 (employees of
company that had a contract with City to provide maintenance to parking
meters were not third party beneficiaries of that contract), dismissal of
this claim is not warranted at this time. In order to determine whether
plaintiff is an intended beneficiary, the Court must examine the language
of the contract and perhaps other relevant evidence. Muhlrad, 1997 WL
182614, * 6 ("In determining whether there is an intended third party
beneficiary, courts should look first at the contractual language itself
. . . and where appropriate the
surrounding circumstances.") (internal quotations and citations
omitted); see also Nat'l Westminster Bank v. Grant Prideco, Inc.,
261 F. Supp.2d 265, 272-73 (S.D.N.Y. 2003); Fourth Ocean Putnam Corp. v.
Interstate Wrecking Co., 66 N.Y.2d 38, 45 (1985). As such, the issue is
better resolved on summary judgment or at trial. Suffice it to say that,
for now, plaintiff has met the minimum threshold pleading requirements of
Fed.R.Civ.P. 8 to state a claim against the Barbosa defendants as a third
party beneficiary to a contract.
For her eighth claim based on breach of contract, plaintiff alleges
that the INS had "an employment contract which cover[ed] plaintiff's
employment with it and The Barbosa Group." She claims that defendants
"violated her rights under the employment contract," including her "right
to a safe, non-discriminatory and non-hosfile work environment, to
employment and civil rights." (Dkt. # 1, ¶¶ 54-55). The Barbosa
defendants argue that plaintiff's breach of contract claim must be
dismissed because she was an at-will employee with no enforceable
I agree that plaintiff has failed to state a claim for breach of
contract, but for a different reason.*fn4 In her complaint, plaintiff
does not allege that she was a party to the contract. In fact, her
allegations clearly state that the contract was between The Barbosa Group
and the INS. (Dkt. #1, ¶¶ 21(a), 55). Because plaintiff has not
pleaded an essential element of a claim for breach of contract, the claim
is dismissed. Cf. Highlands Ins. Co. v. PRG Brokerage, Inc., No.
01 Civ. 2272, 2004 WL 35439, *8 (S.D.N.Y. Jan. 06, 2004) (breach of
contract action dismissed pursuant to 12(b)(6) where complaint did not
allege that defendant was a contracting party).
2. The Federal Defendants' Motion to Dismiss
The federal defendants have moved to dismiss plaintiffs seventh and
eighth claims for lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1). They argue that the Court of Federal Claims has
exclusive jurisdiction to hear claims against the government based on
express or implied contractual rights. Plaintiff did not address this
argument in her response papers. I agree with the federal defendants.
In any action in which the United States is named as a defendant, a
waiver of sovereign immunity is a prerequisite to subject matter
jurisdiction over the claims asserted and is to be construed strictly and
limited to its express terms. See Dep't of the Army v. Blue Fox,
Inc., 525 U.S. 255, 261 (1999); Up State Federal Credit Union v.
Walker, 198 F.3d 372, 374 (2d Cir. 1999). Plaintiff bears the burden
of proving by a preponderance of the evidence that subject matter
jurisdiction exists. Makarova, 201 F.3d at 113.
Here, plaintiff failed to meet that burden. In her complaint, she
pleaded 28 U.S.C. § 1331, 1343, 2201, 2202, and
42 U.S.C. § 2000e(5)(f) as the bases for this Court's jurisdiction.
(Dkt. #1, ¶¶ 1-2). None of these statutes, however, confer subject
matter jurisdiction here.*fn5 The contract itself is the sole source of
the rights plaintiff seeks to enforce in the seventh and eighth claims,
and the damages she seeks are those that run from the "defendants'
breach." (See Dkt. # 1, ¶¶ 1-52, 55-56). Therefore, the claims
allegedly arise from a contract with the federal government. Up State
Federal Credit Union,
198 F.3d at 376-77 (determining that plaintiffs claim against the
United States Army was based in contract for purposes of subject matter
jurisdiction because the source of the right at issue was the contract
between the parties).
Having found that the claims are based in contract, a waiver of
sovereign immunity can only come from the Contract Disputes Act (as
amended by the Tucker Act, 28 U.S.C. § 1346(a)(2) and 1491) ("CDA").
The CDA waives sovereign immunity for actions against the United States
that arise from contract. However, the CDA gives the Court of Federal
Claims exclusive subject matter jurisdiction over such actions. See
28 U.S.C. § 1346(a)(2), 1491(a)(1). Accordingly, plaintiff's seventh
and eighth claims against the federal defendants are dismissed pursuant
to 12(b)(1). Up State Federal Credit Union, 198 F.3d at 376-77
(dismissing contract claims brought in district court on the ground that
the Court of Federal Claims had exclusive subject matter jurisdiction);
1-10 Industry Assoc., Inc. v. U.S. Postal Serv., 133 F. Supp.2d 194,
196-97 (E.D.N.Y. 2001) (same).*fn6
C. Plaintiff's Fifth Amendment Claims
For her ninth claim based on the Fifth Amendment, plaintiff alleges
that she had a property interest in her continued employment at the BDC
and she could not be deprived of that property interest without due
process of law. She also claims that she had a liberty interest in her
employment as a Lieutenant of the BDC of which she could not be deprived
under circumstances that falsely impugn her profession and reputation.
Plaintiff alleges that defendants allowed another employee to make false
accusations against her regarding her job performance after determining
those accusations were not true, changed plaintiff's personnel records,
demoted her without cause, instructed coworkers not to have contact with
her outside of work, initiated action to terminate her after she
requested that her attorney become involved, terminated her without
cause, and falsely reported to the New York Unemployment Department that
she voluntarily left her job. (Dkt. #1, ¶¶ 21(h)-(w), 58-62).
Defendants advance several arguments for dismissal of this claim.
I find that this claim must be dismissed. First of all, no such action
can lie against Tom Ridge (named only in his official capacity as the
head of Department of Homeland Security, the successor agency to the INS)
because a claim based on Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971) may not be brought against a federal agency.
Instead, only a federal officer named in his or her individual capacity
is a proper defendant. See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994);
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.
Second, plaintiff's Bivens claims against the individually named
federal defendants (Nelson and Mule) and the individually named Barbosa
defendants (Barbosa, McMichael, Schreiner, Arena, and Taylor)*fn7 must
be dismissed because courts have uniformly refused to recognize that such
claims lie in the context of federal employment.*fn8 See Bush v. Lucas,
462 U.S. 367, 368 (1983); Hall v. Clinton,
235 F.3d 202 (4th Cir. 2000); Blankenship v. McDonald, 176 F.3d 1192 (9th
Cir. 1999); Mclntosh v. Turner, 861 F.2d 524 (8th Cir. 1988); Payne v.
Meeks, 200 F. Supp.2d 200, 205-206 (E.D.N.Y. 2002).
The primary reason given for refusing to recognize a Bivens claim in
the federal employment context is that it would vitiate the various
statutory schemes that apply to federal employment (including, inter
alia, the Civil Service Reform Act of 1978, the Congressional
Accountability Act, and the Veterans' Affairs Labor Relations Improvement
Act). These comprehensive statutes provide remedies against the United
States as an employer, and are governed by procedural and substantive
provisions that have been carefully promulgated by Congress and
"constructed step by step, with careful attention to conflicting policy
considerations." Bush, 462 U.S. at 388. To allow a Bivens claim in these
instances would, in effect, allow a dissatisfied federal employee to
bypass the applicable the statutory schemes and pursue a judicially
created private remedy in a court of law, thereby ignoring Congressional
These holdings are consistent with the policy underlying the judicially
created claim for damages created in Bivens the lack of other
adequate remedies at law to address the wrongs alleged. See Malesko, 534
U.S. at 67-68. Here, however, plaintiff has other remedies available to
her, many of which she is pursuing in this action. Importantly, the facts
plaintiff asserts in support of her Fifth Amendment Bivens claim form the
basis for her other claims, including the third party
beneficiary breach of contract and Title VII. Therefore, plaintiff's
Fifth Amendment Bivens claims against Nelson, Mule, Barbosa, McMichael,
Schreiner, Arena, and Taylor are dismissed.*fn9
D. Plaintiff's 42 U.S.C. § 1985 claims
For her tenth claim, plaintiff asserts that she held an office, trust
or place of confidence in her employment at the BDC. She alleges that
defendants, together with other persons as yet unknown by name, have
"conspired to prevent, plaintiff, by force, intimidation, or threat, from
holding her Lt. position or from discharging her duties," in violation of
42 U.S.C. § 1985(1). (Dkt. # 1, ¶ 66). For substantially the
same reasons that plaintiff cannot maintain a Bivens claim, I find that
she has failed to state a claim under 42 U.S.C. § 1985(1). Even
assuming that plaintiff could be considered a federal officer within the
meaning of § 1985(1) in the context of this case,*fn10 courts have
held that federal officers cannot challenge what are essentially
personnel decisions through civil actions brought under
42 U.S.C. § 1985(1). See Hall, 235 F.3d at 206; Marshall-Screen v.
I.R.S., No. 01-CV-0811, 2002 WL 264999, *2 (E.D.N.Y. Feb. 26, 2002)
Finally, plaintiff's 42 U.S.C. § 1985(3) claim is dismissed for
failure to state a claim. For her eleventh claim, plaintiff alleges that
defendants and others not yet named "have conspired to
deprive plaintiff and other persons similarly situated of their rights to
equal protection of the laws and of equal privileges and immunities under
the law by, for example, interfering with plaintiff's right to complain
about unlawful discrimination/retaliation against her, her right to due
process of law and equal protection of the laws" and were committed "with
an invidiously discriminatory animus against women as a class," in
violation of 42 U.S.C. § 1985(3). (Dkt. #1, ¶¶ 70-73). It is
well-settled that § 1985(3) does not create any substantive rights,
but provides a civil claim when some otherwise defined federal right is
breached by conspiracy.
Here, plaintiff's allegations clearly assert gender discrimination and
retaliation claims that are remediable only through Title VII. However,
section 1985(3) cannot be used as a remedy for conduct that violates
Title VII. As such, her 1985(3) claim must be dismissed. See Brown v.
Gen. Servs. Admin., 425 U.S. 820, 835 (1976) (Title VII provides the
exclusive remedy for employment discrimination claims against the United
States); see also Great Am. Fed. Savings & Loan Ass'n v. Novotny,
442 U.S. 366, 372 (1979) (the "deprivation of a right created by Title
VII cannot be the basis for a cause of action under § 1985(3).");
Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir. 1996)
(granting 12(b)(6) motion to dismiss 42 U.S.C. § 1985(3) claim that
was based on same conduct that was alleged in support of plaintiff's ADEA
E. Plaintiff's Motion to Amend Her Complaint
Plaintiff moved for permission to amend her complaint should this Court
dismiss any of her claims as insufficient. (Dkt. #50-3). Here, the Court
has dismissed plaintiff's seventh claim (third-party beneficiary breach
of contract) against the federal defendants, her eighth claim (breach of
contract) against all defendants, her ninth claim (Fifth
Amendment/Bivens claim) against all defendants, and her tenth and
eleventh claims (42 U.S.C. § 1985(1) and (3)) against all
The Court cannot conceive of any allegations plaintiff could assert
in an amended complaint that would change the results reached here.
Arguably, the only such claim that could be supplemented through an
amendment would be the breach of contract claim. However, plaintiff does
not appear to contest the fact that she herself was not a signatory to
the contract at issue. Therefore, plaintiff's motion for permission to
amend the complaint is denied because any such amendment would be
The federal defendants' motion to dismiss (Dkt. #32) is granted, in
part, and denied, in part, as follows: (1) the federal defendants' motion
to dismiss plaintiff's first claim based on Title VII for failure to
exhaust administrative remedies is denied; (2) the federal defendants'
motion to dismiss plaintiff's seventh, eighth, ninth, tenth, and eleventh
claims is granted and those claims are dismissed.
The Barbosa defendants' motion to dismiss (Dkt. #37) is granted, in
part, and denied, in part, as follows: (1) the Barbosa defendants' motion
to dismiss plaintiff's seventh claim based on third
party beneficiary breach of contract is denied; (2) the Barbosa
defendants' motion to dismiss plaintiff's eighth, ninth, tenth, and
eleventh claims is granted and those claims are dismissed.
Plaintiff's motion to exclude matters outside of the pleadings (Dkt.
#50-1) is granted. Plaintiff's motion for alternative relief (Dkt. #50-2)
is denied as moot. Plaintiff's motion for permission to amend the
complaint (Dkt. #50-3) is denied.
IT IS SO ORDERED.