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JOSEPH v. LEAVITT

September 6, 2005.

GREGSON JOSEPH, Plaintiff,
v.
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 dismissed.

  I. BACKGROUND*fn4

  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.
(Id.)

  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 ...


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