Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

September 6, 2005.


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).


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 dismissed.


  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 training.
. . . .
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 conducted.
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. Crawford.
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 tolerated.

  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


  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 constitutional grounds.

  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 federal government.

  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.



© 1992-2005 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.