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TORRES v. U.S. DEPT. OF VETERAN AFFAIRS

March 30, 2004.

TESSY TORRES, Plaintiff, -against- U.S. DEPT. OF VETERAN AFFAIRS, MARYANN MUSUMECI, Agency Director, Dr. GERALD SABLE, Chief Director, Defendants


The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

OPINION AND ORDER
I. Introduction

Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621-634 (the "ADEA"), 42 U.S.C. § 1981 and 5 U.S.C. § 7201, alleging employment discrimination on the basis of race, gender and age. Defendants move to dismiss the complaint. The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendants' motion is granted without prejudice to plaintiff filing a second amended complaint to correct the deficiencies that currently exist in the pleadings. Page 2

II. Facts

  Plaintiff worked in an unspecified position at the Veteran Affairs Medical Center for twenty-two years (Complaint, sworn to December 2, 2002 ("Compl."), ¶ 1). On an unspecified date, Miguel Rodriguez came to plaintiff to be "admitted" as a dental patient (Compl., ¶ 5). Plaintiff believed that Rodriguez's request to be "admitted" was a "practical joke" because he exhibited "extreme feminine qualities," so she checked on the computer "to see if he was service connected" (Compl., ¶ 5). Apparently, plaintiff's accessing Rodriguez's records was unauthorized because on May 8, 2001, Dr. Gerald Sable terminated plaintiff's employment because "plaintiff sought information not privy to her when she received information concerning [Miguel Rodriguez's] next of kin's phone number, Social Security number, and clinic treatment records" (Compl., ¶ 4).

  Plaintiff alleges that she committed an "unintentional minor error" by accessing Rodriguez's records (Compl., ¶ 4). Plaintiff alleges that the United States Merit Systems Protection Board found that Dr. Sable's decision to terminate plaintiff was "much too harsh," and ordered him to return her to full duty, which he "adamantly disobeyed" (Compl., ¶ 6).

  Reading the complaint leniently, plaintiff alleges that she was terminated because of race, gender and age discrimination (Compl., ¶ 2(b)). Plaintiff also alleges that Dr. Sable has Page 3 "openly practiced discrimination" against "many other middle aged female employees under his command, and has also even been brought up on charges for it" (Compl., ¶ 2(b)). Plaintiff also alleges that Dr. Sable discriminated against her because she was "a disabled veteran who suffered from post traumatic stress" (Compl., ¶ 2(c)). As discussed below, however, it appears that plaintiff has now withdrawn all claims relating to disability-based discrimination under the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12111 et. seq. ("ADA") and the Rehabilitation Act, 29 U.S.C. § 791 et. seq.

 III. Analysis

  A. Claims Under the ADA

  Defendants first argue that plaintiff's claim under the ADA should be dismissed for lack of jurisdiction (Defendants' Memorandum of Law in Support of Motion to Dismiss, dated May 19, 2003 ("Def. Mem.") at 3). It appears from plaintiff's amended complaint, however, that she has withdrawn her claims under both the ADA and the Rehabilitation Act. In her amended complaint plaintiff states "[p]lease strike part 2[,] Section C of my complaint since this paragraph has nothing to do with the legalities of this case" (Amended Complaint, dated March 28, 2003 ("Am. Compl.") at 1). Part 2, Section C of plaintiff's complaint cites the ADA, 42 U.S.C. § 1211 [1]-12117, and alleges that Dr. Sable Page 4 knew plaintiff was a disabled veteran who suffered from post traumatic stress disorder and used this "to his advantage periodically for a great number of years by publicly harassing her" (Compl., ¶ 2 (c)). Furthermore, in her opposition to defendants' motion, plaintiff states that "All afore mentioning of the `REHAB ACT of 1973' shall not be sanctioned, but shall be obliterated from text." (Plaintiff's Opposition to Motion to Dismiss, sworn to June 17, 2003 ("Pl. Opp."). Although the meaning of this latter statement is not entirely clear, these two statements when viewed in conjunction lead me to conclude that plaintiff has withdrawn all claims relating to disability-based discrimination.*fn1

  B. Proper Parties to the Action

  Defendants next argue that plaintiff has not asserted her claims against the appropriate party. Specifically, defendants argue that "[w]hen challenging the employment practices of Page 5 an executive agency of the federal government, a plaintiff may name as a defendant only the appropriate department head"; to wit, the Secretary of the Department of Veteran Affairs (Def. Mem. at 4).

  Employees, including supervisors, are not subject to suit under Title VII, the Rehabilitation Act or the ADEA. See Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ("A finding of agent liability [under Title VII] would lead to results that Congress could not have contemplated."). Defendants are correct that the proper defendant here is the Secretary of the Department of Veteran Affairs. Nobriga v. Dalton, 94 Civ. 1972, 1996 WL 294354 at *2 (E.D.N.Y. May 28, 1996) ("The Rehabilitation Act permits only the head of a government agency to be sued, but not the agency itself or its lower-level federal employees."); Edinboro v. Department of Health & Human Servs., 704 F. Supp. 364, 365 (S.D.N.Y. 1988) ("The Rehabilitation Act . . . incorporates the procedural requirements for suits under Title VII of the Civil Rights Act. . . . In order to commence an action in district court under Title VII, a federal employee alleging discrimination may bring suit only against `the head of the department, agency or unit'. 42 U.S.C. § 2000e-16(c). An action may not be brought against the agency itself."); see also Matthews v. United States Postal Serv., Page 6 87-CV-1282, 1989 WL 14684 at *4 (N.D.N.Y. Feb. 23, 1989) ("Unlike Title VII, the ADEA does not expressly provide who the proper party defendants should be in an action against a federal entity such as the Postal Service. As defendant correctly states, however, those courts which have addressed the issue of the proper defendant in an ADEA action against the government have held that plaintiffs must name the agency head as defendant."), citing Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir.), Ellis v. United States Postal Serv., 784 F.2d 835, 838 (7th Cir. 1986), Smith v. Office of Pers. Mgmt., 778 F.2d 258, 262 (5th Cir. 1985) and Healy v. United States Postal Serv., 677 F. Supp. 1284, 1288-89 (E.D.N.Y. 1987).

  Accordingly, plaintiff's claims against the defendants Sable and Musumeci under Title VII, the Rehabilitation Act and the ADEA are dismissed without prejudice to plaintiff's filing a second amended complaint naming the Secretary of ...


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