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TUCKER v. GONZALES

September 27, 2005.

NATHAN TUCKER, et al., Plaintiffs,
v.
ALBERTO GONZALES, as ATTORNEY GENERAL of the UNITED STATES, Defendant.



The opinion of the court was delivered by: LAURA SWAIN, District Judge

OPINION AND ORDER

Nathan Tucker, Paul Sutherland and Wilfred Baptiste (collectively "Plaintiffs"),*fn1 all former and/or present Special Agents ("SAs") in the New York Field Office ("NYFO") of the Federal Bureau of Investigation ("FBI"), bring this action against Alberto Gonzales ("Defendant"),*fn2 who as Attorney General of the United States is responsible for the FBI, pursuant to Title VII of the Civil Rights Act ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1991 ("Civil Rights Act"), 42 U.S.C. § 1981(a). The Court has jurisdiction of this action pursuant to 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981(a). Defendant moves pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure for an Order dismissing the pattern or practice and disparate impact causes of action asserted in Plaintiffs' Amended Complaint. The Court treats the motion as one pursuant to Rule 12(b)(6). For the following reasons, Defendant's motion to dismiss Plaintiffs' pattern or practice and disparate impact claims is granted.

  BACKGROUND

  The facts of this action as alleged in Plaintiffs' Amended Complaint are taken as true for the purposes of this motion. Nathan Tucker ("Tucker"), an African-American GS-13 SA, was employed in the FBI's NYFO from 1987 to March 2001, during which time he served on the Fugitive Task Force Squad. (Am. Compl. ¶ 9a.) Paul Sutherland ("Sutherland") is an African-American GS-13 SA who has been employed with the FBI since 1989. (Id. ¶ 9b.) During his tenure, Sutherland has served on the Fugitive Task Force Squad, and has acted as a firearms instructor, a tactical instructor and a squad leader of the Special Weapons and Tactics ("SWAT") team. (Id.) Wilfred Baptiste ("Baptiste") began his employment with the FBI's NYFO in 1988. (Id. ¶ 9c.) Baptiste, an African-American GS-13 SA, served on the Fugitive Task Force Squad and was a member of the SWAT team until his transfer to the Long Island Resident Agency on December 4, 2000. (Id. ¶¶ 9c, 61.)

  In October of 1999, the FBI promoted SA Mark Paridy ("Paridy") to the position of Supervisory Special Agent ("SSA") of the Fugitive Task Force Squad. (Id. ¶ 11.) At the time of Paridy's appointment, Tucker, Sutherland and Baptiste were each accomplished members of the Fugitive Task Force and were responsible for many high profile arrests. (Id. ¶ 12.) Tucker had worked on "the successful capture[s] of a FBI `Top Ten' fugitive[and] . . . of a subject featured on the television show `America's Most Wanted,' while Sutherland had helped capture a notorious gang enforcer and Baptiste had helped capture two serial killers. (Id. ¶¶ 13-14.) Additionally, Tucker and Baptiste "consistently received exceptional performance appraisal report ratings," and Sutherland received a superior rating. (Id. ¶ 12.)

  However, despite Tucker's, Sutherland's and Baptiste's records of achievement, Paridy constantly scrutinized and belittled their work, harassed them because of their race and limited their ability to attend training sessions. (Id. ¶¶ 19, 21.) In addition, Paridy sought to use his position of power to discriminate against the African-American and Hispanic members of the NYFO. For example, soon after his appointment, Paridy instituted an "Availability/Accountability Policy" which eliminated the 10:00 a.m. to 6:00 p.m. work shift favored by African-American SAs, but retained the 6:00 a.m. to 2:00 p.m. and 8:15 a.m. to 5:00 p.m. work shifts favored by Caucasian SAs. (Id. ¶ 15.) Paridy implemented the Availability/Accountability Policy in order "to interfere with [the African-American SAs'] investigations and make their personal lives more difficult and burdensome as means of racial harassment." (Id.)

  On April 25, 2000, SA Tucker filed an initial complaint against SSA Paridy with the FBI's Office of Equal Employment Opportunity Affairs ("EEO"), alleging that Paridy had subjected him to disparate and prejudicial treatment. (Veronica Venture Decl. Ex. A.) After Tucker filed his EEO complaint, Paridy retaliated by dropping his performance rating from "exceptional" to "superior." (Am. Compl. ¶ 28.) Paridy also temporarily assigned Tucker to the White Collar Crime Branch, where he was assigned duties usually left to junior agents. (Id. ¶ 29.) "At [that] time, Tucker was second in seniority on the Fugitive Task Force Squad." (Id.) Eventually, as a result of Tucker's unwillingness to drop his EEO Complaint, the FBI reassigned him to the Bank Robbery Squad. (Id. ¶ 33.) After his transfer, Tucker was unable to secure a supervisory position as a result of Paridy's low evaluations. (Id. ¶ 35.) Tucker finally decided to relocate "to the FBI's Baltimore Division because of the discrimination, hostile work environment and retaliation he had suffered" at the NYFO. (Id.)

  SAs Sutherland and Baptiste were also victims of Paridy's discriminatory conduct at the NYFO. Paridy cancelled Sutherland's original vehicle equipment assignment, and replaced his vehicle with a less desirable model. (Id. ¶ 37.) After learning of Sutherland's situation, Coordinating Supervisory Special Agent David Stone and Assistant Special Agent in Charge James Sheehan overturned Paridy's decision. (Id.) Paridy further subjected Sutherland to discrimination by berating him in front of a New York City Police Department Officer after the arrest of a dangerous fugitive and by including unsubstantiated negative comments in the narrative section of his performance appraisal report. (Id. ¶¶ 44, 46.)

  Paridy over-scrutinized Baptiste's written reports and communications in comparison to those of similarly situated Caucasian SAs, and limited his participation on the SWAT team. (Id. ¶¶ 50-51.) Although Baptiste was a senior agent on the Fugitive Task Force, Paridy treated him as if he were an inexperienced agent and constantly spoke to him in a condescending manner. (Id. ¶ 53.) Paridy also downgraded Baptiste's performance rating from "exceptional" to "superior," and omitted from the performance report Baptiste's accomplishments, while negatively characterizing his work. (Id. ¶ 49.) On December 4, 2000, Baptiste was transferred from the Fugitive Task Force to the Long Island Resident Agency. (Id. ¶ 61.) This transfer was based on an earlier misrepresentation by Paridy to Special Agent in Charge Robert Cordier. (Id.)

  Plaintiffs filed a Complaint against Defendant on September 25, 2002, in the United States District Court for the District of Columbia, alleging a pattern of discrimination, harassment and retaliation by the FBI in violation of Title VII and the Civil Rights Act. (Jeffrey Oestericher Decl. Ex. A.) By Order dated March 12, 2003, District Court Judge Royce C. Lamberth dismissed Plaintiffs' Complaint without prejudice to re-filing in a proper venue. (Id. at Ex. B.)

  Plaintiffs filed their Complaint with this Court on May 2, 2003. Defendant thereafter moved for an Order (1) dismissing the Complaint insofar as claims were asserted on behalf of Hobson and Luquis for failure to exhaust administrative remedies pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure; and (2) dismissing Plaintiffs' Complaint in its entirety for failure to comply with Rule 8 of the Federal Rules of Civil Procedure or, in the alternative, severing the claims of Hobson and Luquis pursuant to Rules 21 and 42(b) of the Federal Rules of Civil Procedure. In response to Defendant's motion, Plaintiffs filed an Amended Complaint on October 31, 2003, asserting five causes of action for alleged violations of Title VII and the Civil Rights Act: (1) hostile work environment, (2) pattern or practice discrimination, (3) disparate impact, (4) disparate treatment discrimination and (5) retaliation. The Court denied the motion to dismiss, without prejudice, in light of the amendment of the complaint.

  On December 2, 2003, Defendant filed a renewed motion to dismiss Plaintiffs' pattern or practice and disparate impact causes of action for failure to state a claim and failure to exhaust administrative remedies, pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. Because it is not necessary for the Court to look beyond the Amended Complaint to make a determination on this matter, the motion will be treated solely as one pursuant to Rule 12(b)(6). The claims of Plaintiffs Hobson and Luquis were dismissed on May 31, 2005, without prejudice.

  DISCUSSION

  In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court must take as true the facts alleged in Plaintiffs' Amended Complaint and draw all reasonable inferences in their favor. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Further, the Court must not dismiss a complaint "unless it appears beyond doubt that the plaintiff[s] can prove no set of ...


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