United States District Court, S.D. New York
September 6, 2005.
GREGSON JOSEPH, Plaintiff,
MICHAEL O. LEAVITT, SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (DHHS);[fn1] ALEX AZAR, DHHS GENERAL COUNSEL; LESTER CRAWFORD, U.S. FOOD & DRUG ADMINISTRATION (FDA), ACTING COMMISSIONER; DIANA KOLAITIS, FDA NORTHEAST REGIONAL DIRECTOR; JEROME WOYSHNER, FDA NEW YORK DISTRICT DIRECTOR; OTTO VITILLO, FDA SUPERVISORY CONSUMER SAFETY OFFICER; THERESA FOSTER, SUPERVISOR OF FDA LABOR RELATIONS OFFICE; & EDMUND SIEJKA, FDA LABOR RELATIONS SPECIALIST, Defendants.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
*fn1 Michael O. Leavitt is automatically substituted for Tommy
Thompson as Secretary of the United States Department of Health
and Human Services ("DHHS"), having been sworn in on January 26,
2005. See Fed.R.Civ.P. 25 (d) (1).
DECISION AND ORDER
Pro se plaintiff Gregson Joseph ("Joseph"), an employee of
the United States Food and Drug Administration ("FDA"), filed
this action against Michael O. Leavitt, Secretary of the
United States Department of Health and Human Services ("DHHS"),*fn2
Dr. Lester Crawford ("Dr. Crawford"), the FDA's Commissioner, and
several individual FDA employees (collectively, "Defendants").
The complaint alleges that a memorandum sent to Joseph by his supervisor violated his rights
under the First Amendment to the United States Constitution. The
complaint also alleges that the memorandum violated Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
("Title VII"), and the Federal Labor Management-Management
Relations Statute, 5 U.S.C. § 7101 et seq. ("FLMRS"), but
Joseph insists that he does not seek to pursue these claims in
the instant suit. Defendants have moved to dismiss his
First Amendment claim pursuant to Fed.R.Civ.P. 12(b)(6) for failure
to state a claim upon which relief can be granted.*fn3
For the reasons discussed below, the Court grants Defendants'
motion to dismiss on the grounds that Joseph has no legally
cognizable cause of action in federal court arising out of the
First Amendment injury he alleges. It finds directly controlling
the Second Circuit's recent decision in Dotson v. Griesa,
398 F.3d 156, 179-80 (2d Cir. 2005), which held that the Civil
Service Reform Act of 1978 ("CSRA"), Pub.L. 95-454,
92 Stat. 1111 (codified, as amended, in various sections of Title 5,
United States Code), deprives federal employees of any federal
judicial remedies that were not expressly provided by the CSRA's statutory scheme. Because the
CSRA provides Joseph with no federal judicial remedy for the
First Amendment violation he complains of, his complaint must be
Joseph has been employed by the FDA since 1989. This action
arises from a counseling memorandum sent to Joseph from his
supervisor, Otto Vitillo ("Vitillo"), on October 14, 2004 (the
"Counseling Memo"), which Joseph alleges violated his
First Amendment rights.
The Counseling Memo was a response to two e-mail communications
sent by Joseph to Vitillo, the first of which was sent to Vitillo
and copied to Dr. Crawford, who at the time was the Acting
Commissioner of the FDA, on August 30, 2004 (the "August
e-mail"), and the second of which was sent to Vitillo and copied
to certain union representatives on September 13, 2004 (the
"September e-mail"). The August e-mail asserted various
complaints regarding Joseph's mid-year performance evaluation.
Joseph expressed a concern that Vitillo orally made him aware that his "PODs*fn5 time is
low," but that Vitillo did not mark this down on the performance
review. Joseph also alleged that Vitillo was manipulating the
employee review process in order to retaliate against him for
filing lawsuits and other complaints alleging discrimination:
I am very troubled by the manner in which you
conducted the mid-year appraisal of me. I feel that
you are not operating in good faith and that you are
attempting to create the foundation to unjustly give
me a failing final evaluation.
. . . .
[Y]ou are also very much aware that I have throughout
the year taken several days of annual leave in
connection with my on-going Title VII racial
discrimination civil action against the New York
District, in which you are one of the discriminating
officials.*fn6 Indeed, because of the
discriminatory and retaliatory manner in which you
have supervised me, I have had to file another EEO
complaint earlier this year, in which you were named
as a discriminating official.
. . . .
Unfortunately, I feel that you have allowed yourself
to be used as an instrument to discriminate and
retaliate against me.
(August e-mail, attached as Ex. 2 to Compl., at 1-2.) The e-mail
also argued that the allegedly discriminatory treatment of him by
his supervisors was consistent with the experiences of other FDA
employees who were victims of discrimination. The September e-mail concerned Joseph's requested time, as
Acting President of Chapter 290 of the National Treasury
Employees Union ("NTEU"), to attend a training session in
Florida. Vitillo appears to have suggested that Joseph had not
sought the proper approvals before requesting time to attend the
training. Joseph replied to the charge as follows:
With all due respect, you not having a "response"
from [two union officials] is truly irrelevant to my
request for official time to attend NTEU's Fall
. . . .
When I made the request for official time, I did
provide information that gave sufficient data about
what the Fall training "was about." If for some
reason you needed more information, you could have
made the request directly to me. It is certainly
interesting that you did not. . . . [I]t is
reminiscent of a sort of Black Codes, whereby some
persons in the society had to receive the permission
of others to engage in limited free speech, limited
movement, and limited travel, and also to be
monitored closely while engaged in such activities,
with "papers" at the ready to provide to any law
enforcement personnel (official or quasi) and certain
groups of citizens on demand.
(September e-mail, attached as Ex. 3 to Compl., at 1.)
Vitillo responded to these e-mailed allegations with the
Counseling Memo, which was copied to Wanda Eng, Director of the
FDA's Investigations Branch, and Jerome Woyshner ("Woyshner"),
who is described in Joseph's complaint as the New York District
Director of the FDA. The Counseling Memo began by stating it was
intended to address Joseph's "unprofessional behavior towards
[Vitillo] in [the August and September] e-mails." (Counseling Memo, attached as Ex. 1 to
Compl., at 1.) The Counseling Memo went on to state:
In both [e-mails], the tone appears to be sarcastic
and disrespectful. Despite the preface to the
September 13, 2004 e-mail, "With all due respect,"
your comments and tone are anything but. Since we
both spend a significant amount of time in the
workplace, it is essential that it be a respectful
workplace. Disrespectful conduct serves no useful
purpose and it often interferes with the work being
Additionally, any future comments and/or complaints
about the workplace should follow the chain of
command and you should not assume that you can
indiscriminately forward e-mails directly to Dr.
We must strive to maintain a professional, courteous
attitude and be considerate of others in the
workplace. I am advising you that your unprofessional
behavior towards me is unacceptable and cannot be
The memo also warned Joseph that if his conduct did not
improve, disciplinary action, including termination from the FDA,
could result. According to an EEO Counselor, Woyshner informed
her that "the counseling memo was not an official reprimand and
therefore was not made part of [Joseph's] official personnel
file." (EEO Counselor's Report, dated April 22, 2004, attached as
Ex. 1 to Joseph Opp. Mem. ("Counselor's Report"), at 6.)
Joseph filed his complaint on November 24, 2004. In the
complaint, Joseph alleged that the issuance of the Counseling
Memo gave rise to three causes of action: (1) a violation of
Joseph's First Amendment rights; (2) a violation of Title VII; and (3) a violation of the FLMRS. Specifically with regard to the
First Amendment claim, Joseph alleges that Defendants, by sending
him the Counseling Memo, had taken an action that "revoked,
restricted and chilled" his First Amendment right to free speech
by limiting his ability to comment on racial discrimination at
the FDA and DHHS. (Compl. at 26.)
Joseph has also begun two separate administrative proceedings
related to the Counseling Memo. (See Flynn Decl. ¶¶ 5-6.) On
November 26, 2004, Joseph filed an informal complaint with the
EEOC. An EEO Counselor conducted an investigation, initiated
because Joseph "believe[d] the Counseling Memo was issued in
retaliation for his prior EEO complaints and for his ongoing
opposition to unlawful discriminatory policies and practices.
[Joseph] also believe[d] the Counseling Memo was issued because
he is a black male," and concluded that the matter could not be
resolved informally. (Counselor's Report at 5-6.) Joseph states
that he filed a formal EEO complaint on May 24, 2005. (Joseph
Opp. Mem. at 4.) In addition, Joseph has submitted a notice of
intent to file an unfair labor practice complaint pursuant to
Article 60 of the Collective Bargaining Agreement between the FDA
and the NTEU. (See Flynn Decl. Ex. A.)
Even though Joseph's complaint alleges that the Counseling Memo
gives rise three causes of action (see Compl. at 2), he has expressly limited the instant suit to claims
allegedly arising under the First Amendment. In his opposition
brief, Joseph states that "SIMPLY PUT, THE LEGAL QUESTION BEFORE
THE COURT IS: DID THE AGENCY [AND THE NAMED AGENCY OFFICIALS IN
THEIR OFFICIAL AND INDIVIDUAL CAPACITIES] BY THEIR INSTANT ACTION
AGAINST PLAINTIFF VIOLATE PLAINTIFF'S FIRST AMENDMENT RIGHTS?"
(Joseph Opp. Mem. at 4) (emphasis and bracketed text in
original). He also asserts that "his complaint is a complaint
contending violation of his First Amendment rights. It is not a
Title VII complaint alleging employment
discrimination/retaliation. . . . A Title VII claim of employment
discrimination is not before the Court at this time." (Id.)
Further, Joseph states that he "has not filed an unfair labor
practice or any other claims with the Court for violations of the
FLMRS." (Id. at 5.) Because Joseph declares that the only cause
of action raised in his suit relates to an alleged violation of
his First Amendment rights, the Court looks only at whether
Joseph's First Amendment allegations may survive a motion to
dismiss.*fn7 II. DISCUSSION
A. STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant to Fed.R.Civ.P.
12(b) (6), the Court "tak[es] as true the material facts alleged
in the complaint and draw[s] all reasonable inferences in favor
of the plaintiff." Dotson, 398 F.3d at 162 (citing Desiano v.
Warner-Lambert Co., 326 F.3d 339, 347 (2d Cir. 2003)). However,
"where pleadings are legally defective, dismissal is warranted
without regard to the factual merits of a plaintiff's underlying
claim." Id. at 159 (citing Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83 (1998)).*fn8
The Court begins its analysis of Joseph's claims by assuming,
for the purposes of argument, that Joseph asserts an injury that
would not be precluded by Title VII,*fn9 and that is actionable under the First Amendment.*fn10 It is extremely
doubtful that Joseph could satisfy these conditions. But even if
he could, it is clear from Dotson that any First Amendment
claim that he would otherwise be able to assert would be
precluded by the CSRA.*fn11 In Dotson, the Second Circuit addressed a federal probation
officer's efforts to pursue constitutional claims in federal
court. The employee, Allen Dotson ("Dotson") had been terminated,
and had unsuccessfully pursued at least some of the
administrative review procedures available to him to seek
reinstatement. See Dotson, 398 F.3d at 161-62. Dotson then
sought damages and equitable relief against several judges of
this District and employees of the Probation Office of the
United States District Court for the Southern District of New York
("Probation Office"). Dotson argued that he could maintain a
cause of action for damages arising out of the defendants'
allegedly unconstitutional conduct towards him under Bivens v.
Six Unknown Agents, 403 U.S. 388 (1971), and that he was also
able to pursue equitable relief against the officials on
The Circuit Court rejected these arguments, concluding that the
comprehensive remedial scheme established by the CSRA precluded
Dotson's constitutional claims. See id. at 160 ("Precisely
because the CSRA reflects a detailed and comprehensive system for
dealing with federal employment concerns, federal courts will
generally not attempt to supplement the relief afforded by that
statute through other actions, including those implied under Bivens or derived from
equity."). It reached this conclusion even though it found that
Dotson was not entitled to any of the administrative remedies
provided by the CSRA itself to many other federal employees.
See id. The Circuit Court relied on a line of Supreme Court
cases, including Bush v. Lucas, 462 U.S. 367 (1983), United
States v. Fausto, 484 U.S. 439 (1988), and Schweiker v.
Chilicky, 487 U.S. 412 (1988), that sharply restricted federal
employees' ability to pursue judicial remedies for constitutional
injuries arising out of their employment relationship with the
Joseph cannot distinguish his First Amendment claims against
Defendants from the claims that were found to be precluded by the
CSRA in Dotson. Joseph argues that he may not pursue any
remedies under the CSRA due to the nature of his complaint and
the alleged injury he suffered. But this assertion, in addition
to being immaterial to the Court's disposition of his claim, is
incorrect. Unlike the plaintiff in Dotson, Joseph is covered by
the CSRA and may pursue remedies available under that statute to
address the alleged violation of his First Amendment rights. As
described in Dotson, Chapter 23 of the CSRA "establishes the
principles of the merit system of employment." Dotson,
398 F.3d at 163 (quoting Fausto, 484 U.S. at 446). The statute, and specifically 5 U.S.C. § 2301, which lists merit system
principles, requires that all employees be treated "with proper
regard for their privacy and constitutional rights."
5 U.S.C. § 2301(b) (1). It also states that supervisory employees shall not
"take or fail to take any other personnel action if the taking of
or failure to take such action violates any law, rule, or
regulation implementing, or directly concerning the merit system
principles contained in section 2301 of this title."
5 U.S.C. § 2302(b) (12). Considering these two sections of Chapter 23 of the
CSRA together, courts have concluded "it is a `prohibited
personnel practice' to take a personnel action that
unconstitutionally burdens an employee's speech." Jarvis v.
Cardillo, No. 98 Civ. 5793, 1999 WL 187205, at *3 (S.D.N.Y. Apr.
6, 1999); see also Hightower v. United States,
205 F. Supp. 2d 146, 156 (S.D.N.Y. 2002) ("An employee's `employment related
claims alleging constitutional violations are "prohibited
personnel actions" within the meaning of the CSRA.'") (quoting
Black v. Reno, No. 99 Civ. 2704, 2000 WL 37991, at *8 (S.D.N.Y.
Jan. 18, 2000)).
The CSRA provides for an administrative procedure that Joseph
may use to pursue his claims of unconstitutional conduct.
Chapter 23 of the CSRA provides that an employee who alleges he or she
was subjected to a "prohibited personnel practice" may file a complaint with the Office of Special Counsel
("OSC"). See Tiltti, 155 F.3d at 601; Jarvis, 1999 WL
187205, at *4. The OSC is empowered to investigate the allegation
and determine "whether there are reasonable grounds to believe
that a prohibited personnel practice has occurred, exists, or is
to be taken," 5 U.S.C. § 1214(a) (1) (A), may request that the
agency take corrective action, and if no such action is taken,
may petition the Merit Systems Protection Board ("MSPB") to
require the agency to take corrective action. See Tiltti,
155 F.3d at 601.
While the CSRA does not provide for any substantive judicial
review of the OSC's resolution of a federal employee's complaint,
see id. (noting that "[j]udicial review of an [Office of
Special Counsel] decision is limited, at most, to insuring
compliance with the statutory requirement that the OSC perform an
adequate inquiry on which to base its disposition of an
employee's petition") (quoting Cutts v. Fowler, 692 F.2d 138,
140 (D.C. Cir. 1982)), "[t]he unavailability of judicial review
under the CSRA for certain employment grievances cannot be
`inadvertent' in light of the Supreme Court's holding in United
States v. Fausto." Dotson, 398 F.3d at 167. Consequently,
Joseph cannot argue that the absence of judicial review provided
by the CSRA's administrative scheme entitles him to a federal
cause of action.
As Dotson concluded, the CSRA precludes a federal employee
from pursuing judicial remedies for allegedly unconstitutional
conduct that are not expressly provided by the statute,
regardless of the type of remedy sought by the federal employee.
See id. at 176 (concluding that "federal employees covered by
the CSRA? are precluded from pursuing Bivens damages actions
for adverse employment decisions"); id. at 182 (concluding
"that Congress has clearly expressed its intent to preclude
federal civil service personnel . . . from attempting to
supplement statutory remedies . . . with separate suits at equity
raising constitutional challenges to adverse employment
actions.").*fn12 The CSRA thus operates to preclude Joseph
from pursuing his First Amendment claim in federal court.
For the reasons discussed above, it is hereby:
ORDERED that the motion of the Defendants to dismiss the
complaint of Gregson Joseph ("Joseph") pursuant to Fed.R. Civ.
P. 12(b) (6) is hereby GRANTED.
The Clerk of the Court is directed to close this case.
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