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Thomas J. Triola v. Asrc Management Services (Asrc Ms)

December 12, 2011


The opinion of the court was delivered by: Korman, J.:


On February 8, 2010, Thomas J. Triola ("Triola") filed a complaint against ASRC Management Services ("ASRC"), an employment placement agency that provides management support and staff outsourcing services to the United States government, and Timothy Geithner ("Geithner"), the Secretary of the United States Department of the Treasury. (Compl. ¶¶ 1, 7,

10.) In count one of his complaint, Triola claims that ASRC and Geithner retaliated against him based on his prior age discrimination complaint, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII") by (i) rescinding an offer of employment in July 2006 and (ii) denying his application for employment on August 10, 2009. (Id. ¶¶ 44-45, 68-69, 70-71; see also Pl.'s Opp. 1.) In count two, Triola alleges that ASRC's conduct on these two occasions also constituted retaliation in violation of New York State Executive Law §§ 296 and 297. (Compl. ¶¶ 78-79.)

On April 19, 2010, ASRC moved to dismiss the complaint for lack of subject matter jurisdiction, under Fed. R. Civ. P. 12(b)(1), and for failure to state a claim, under Fed. R. Civ. P. 12(b)(6). (DE 8.)*fn1 On August 12, 2010, ASRC's motion to dismiss was granted. I dismissed Triola's Title VII claim on the ground that a retaliation claim based on a previous age discrimination complaint is not cognizable under Title VII. (8/12/2010 Order at 5-6.) I also held that Triola's Title VII claim regarding the July 2006 rescission of his employment offer was time barred. (Id. at 6-9.) I declined to exercise pendent jurisdiction over Triola's state law claims. (Id. at 9.)

On September 8, 2010, Triola filed a notice of appeal (DE 25), but the parties subsequently filed a stipulation withdrawing the appeal, pursuant to Fed. R. App. P. 42(b) (DE 26). The appeal was withdrawn because the order dismissing the case against ASRC was not a final order. (See Triola v. ASRC Mgmt. Servs., 10-3605 (2d Cir.), Doc. 38.) It related only to one of the two co-defendants, while the cause of action against defendant Geithner remained open. (Id.)

Defendant Geithner now moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 12(c). In his motion, Geithner argues that Triola's Title VII claim should be dismissed because "Title VII does not prohibit discrimination on the basis of age, nor does Title VII prohibit retaliation based on prior charges of age discrimination." (Def.'s Mem. of Law at 1.) Geithner also asserts that, even if Triola's claim were cognizable under Title VII, his claim based on 2006 events is time barred, and his claim based on 2009 events should be dismissed for failure to allege an employer-employee relationship between the Department of the Treasury and Triola. (Id. at 1-2.) Lastly, Geithner asks me to apply the "law of the case" doctrine, based on the August 12, 2010 order granting ASRC's motion to dismiss. (Id. at 2.)


The August 12, 2010 dismissal order recounted the most salient facts from Triola's complaint, and they are thus repeated here:

Triola retired from his former position as a Special Agent with the United States Customs Service in 2001. (Compl. ¶ 22.) Previously, in 1998, Triola filed several complaints of age discrimination and retaliation with the Customs Service related to his exclusion from certain promotion lists. (Id. ¶ 23.) Those complaints were not resolved to Triola's satisfaction by the Customs Service, so he filed suit in this Court in March 2001. (Id.) The case eventually proceeded to trial before Judge Irizarry, where Triola lost, but the result was reversed on appeal. Currently, the case is still pending.[*fn2 ] (See Triola v. Snow, 01-cv-1603 (E.D.N.Y. 2001).)

In early March 2006, Triola received a notice announcing an open position entitled "Financial Investigator (Intelligence Analyst II)" advertised by ASRC pursuant to a contract between ASRC and the Internal Revenue Service ("IRS"). (Compl. ¶ 24.) The position was located in the Financial Crimes/Forfeiture Unit of the U.S. Attorney's Office for the Eastern District of New York. (Id.) Triola applied for the position several days later, and a project manager at ASRC contacted him to set up an interview on March 20, 2006. (Id. ¶¶ 25-26.) During the interview, according to Triola, the project manager, LeQuan Bowens, informed him that she was "very impressed with him, his resume, and his experience." (Id. ¶ 27.) Subsequently, on April 3, 2006, Triola was interviewed at the U.S. Attorney's Office by Assistant United States Attorney ("AUSA") Elaine Banar, the Chief of the Financial Crimes/Forfeiture Unit. (Id. ¶ 29.) According to Triola, "[t]he interview was very detailed and covered much professional ground, [Triola's] experience and accomplishments, and other information contained in his cover letter and resume." (Id.)

Triola attended a second interview with AUSA Banar on April 10, 2006. (Id. ¶ 30.) Subsequently, Triola received an offer for employment on April 13, 2006, which was contingent on Triola's completion of a "pre-employment drug screen, a pre-employment background investigation, and a favorable customer conducted background investigation, as required by [ASRC's contract with the] IRS." (Id. ¶¶ 32, 34.) Two days later, Triola accepted the contingent offer of employment in writing, and provided a number of documents to ASRC. (Id. ¶ 35.) On July 6, 2006, however, Triola received a telephone call from ASRC indicating that "there appeared to be a conflict of interest in his being employed in this position and that ASRC might have to rescind the offer of employment." (Id. ¶ 41.) According to Triola, ASRC "alluded to some pending litigation." (Id. (emphasis in original).) Triola explained that he had previously filed complaints against the Customs Service, and that an AUSA in the Central Islip office of the United States Attorney's Office for the Eastern District of New York was handling the case for the Department of the Treasury. (Id.) Later, on July 9, 2006, AS[RC] called Triola and informed him that they were rescinding his offer of employment and accused him of "not informing [them] of the 'conflict of interest' during his interview." (Id. ¶ 44.) After some back and forth between Triola and ASRC, on September 5, 2006, ASRC sent Triola an email indicating that they had "decided to go with another candidate" to fill the position. (Id. ¶ 47.)

Two years later, in March 2008, Triola prepared a SF-86 government form, which he was required to file every five years in order to keep his Top Secret Clearance status. (Id. ¶ 54.) Triola alleges that in order to accurately complete the form, he needed to determine the reason why he had been denied employment by ASRC. (Id. ¶ 55.) Accordingly, he filed a FOIA request with the IRS "regarding his selection and subsequent rescission of his employment offer." (Id.) The IRS indicated that it "could not help him without the contract number and referred him to ASRC." (Id.) After Triola contacted ASRC, it responded that "[y]ou were informed at the time that your employment offer was rescinded in July 2006 that the job for which you had applied was one for which you were barred by a conflict of interest." (Id. ¶ 57.) ASRC also indicated that the conflict was not disclosed by Triola and that it was "discovered when ASRC's Federal agency customer received the paperwork for the mandatory background investigation to which you consented in writing." (Id.) Triola alleges that this was the first occasion that he was informed that he was "barred" and that the conflict was discovered by the IRS as part of Triola's background check. (Id. ¶ 58.)

Over the next several months, Triola sent several letters to the IRS requesting information regarding his background check in 2006. (Id. ¶ 61.) In October 2008, Triola received some documents, which he alleges gave him "grounds to reasonably suspect that the reason for rescinding the employment offer was pretextual." (Id. ¶ 62-63.) Triola alleges that there is no mention "of anything remotely corroborating any of the comments [ASRC] made" with respect to his alleged conflict of interest. (Id. ¶ 63.) Consequently, he alleges, "ASRC's explanations to him were false, and obviously were a pretext to cover the real reason for not hiring him, which was the fact that he had engaged in protected activity." (Id. ¶ 67.)

In March 2009, Triola applied for another position with ASRC. (Id. ¶ 68.) In August 2009, Triola "received a very pro forma response indicating that the position was filled." (Id. ¶ 69.) ...

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