The opinion of the court was delivered by: Matsumoto, United States District Judge:
Plaintiff David Corbett, Jr. ("plaintiff") brings this action alleging employment discrimination based on race and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Specifically, plaintiff claims that he was discriminated and retaliated against when his employment with the U.S. Customs and Border Patrol ("CBP") was terminated, and that his former supervisors at the Federal Air Marshal Service ("FAMS") retaliated against him for opposing unlawful employment practices by providing negative references to CBP during CBP's background investigation of plaintiff. Both CBP and FAMS are federal law enforcement agencies organized under the defendant Department of Homeland Security ("DHS" or "defendant").
Defendant has several motions before the court. First, defendant moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on the limited issue of whether plaintiff exhausted his retaliation claim against his former supervisors at FAMS. Second, defendant moves to dismiss plaintiff's retaliation claim involving FAMS for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Third, defendant moves to dismiss plaintiff's retaliation and discrimination claims involving CBP for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Finally, plaintiff moves to amend his complaint for a fourth time to add claims against individual defendants for violations of his right to equal protection of the law under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Defendant objects to plaintiff's motion to amend on the grounds that plaintiff's proposed amendment is futile and that his Bivens claims are time-barred. Having reviewed the parties' submissions, the record before the court, and the relevant case law, for the reasons set forth below, the court denies defendant's motions to dismiss and for summary judgment and denies plaintiff's motion to amend his complaint for the fourth time.
The following facts are taken from plaintiff's Third Amended Complaint and are assumed to be true for the purposes of defendant's Rule 12(b)(6) motion to dismiss.
A. Plaintiff's Employment at the Immigration and Naturalization Service
Plaintiff, an African American and Native American
military veteran, was employed as an immigration inspector with the Immigration and Naturalization Service ("INS"), then a part of the Department of Justice, from April 1998 to April 2002. (ECF No. 43, Third Amended Complaint ("Compl.") ¶¶ 7, 11 & n.1.) As a condition of his employment with INS, plaintiff successfully underwent a sensitive security background investigation and received a "Secret" level security clearance. (Id. ¶ 12.) During his employment at INS, plaintiff received annual performance ratings of either "Excellent" or "Outstanding," the highest possible ratings. (Id. ¶ 13.)
B. Plaintiff's Employment at the Federal Air Marshal Service ("FAMS")
In early 2002, plaintiff was granted a transfer to the New York Field Office of FAMS. (Id. ¶¶ 14, 17.) Due to plaintiff's experience in the military and with INS, plaintiff qualified for a non-probationary, permanent career status position at FAMS with veteran's preference status. (Id. ¶ 14.)
Additionally, plaintiff qualified for a supervisory position at FAMS based on his experience and testing scores. (Id.) After plaintiff resigned from INS, however, FAMS informed him that he would only be offered a probationary, non-supervisory position without permanent career or veteran's preference status, even though plaintiff asserts that newly hired Caucasian air marshals in the FAMS New York Field Office were given non-probationary positions and veteran's preference for their military service. (Id. ¶¶ 15, 20.)
In April 2002, Plaintiff began his employment at FAMS, where he was required to complete a twelve-month probationary period after receiving a "Top Secret" security clearance. (Id. ¶¶ 15, 17.) Although he completed a timely application for a "Top Secret" security clearance, plaintiff's application remained pending during the entire course of his employment at FAMS, while FAMS granted security clearances to white air marshals in a timely manner. (Id. ¶¶ 16, 21.) Additionally, the United States Office of Personnel Management completed its background check in connection with plaintiff's security clearance application and sent the results to FAMS on or about May 22, 2003, but plaintiff was never notified of the results of the investigation. (Id. ¶ 35.)
Under FAMS policy, air marshals were required to arrive at the airport two hours before their scheduled flight.
(Id. ¶ 22.) Plaintiff, however, asserts that the policy was loosely enforced at the FAMS New York Field Office, and that air marshals regularly arrived late without repercussions. (Id.) Plaintiff also maintains that the atmosphere at the FAMS New York Field Office was "permeated by racial hostility." (Id. ¶ 18.) Specifically, he asserts that white air marshals were regularly late for flights, missed flights, had altercations with airline staff, and drank alcoholic beverages on duty, all in breach of FAMS policy, but did not receive adverse employment actions as a result of their conduct. (Id. ¶¶ 18, 23.)
On April 3, 2003, plaintiff carried his fiancee's luggage with him through a security checkpoint at the Dallas/Forth Worth Airport (the "Dallas Incident"), which was an alleged breach of airport security procedures. (Id. ¶ 27.)
On May 12, 2003, plaintiff met with (1) Ira Shinske ("Shinske"), Assistant Special Agent in Charge of the New York Field Office and plaintiff's immediate supervisor, (2) Geraldo Spero ("Spero"), Deputy Special Agent in Charge of the New York Field Office, and (3) Felix Jiminez ("Jiminez"), Special Agent in Charge of the New York Field Office. (Id. ¶¶ 24, 29-30.) The Special Agents informed plaintiff that he was being investigated by the Transportation Security Administration ("TSA") Office of Internal Affairs and Program Review ("OIAPR") because of the Dallas Incident. (Id. ¶ 30.) At the same meeting, plaintiff complained that he was being singled out for unduly harsh treatment because of his race and that white air marshals were not being punished for arriving late for work or for security breaches. (Id. ¶ 31) According to plaintiff, Spero replied that plaintiff had "no future" with the FAMS and that he should resign before he "ruin[ed] [his] federal career." (Id.) When plaintiff refused to resign, Spero allegedly told plaintiff that he would be fired and that a termination letter would arrive from FAMS headquarters "any day now." (Id.) Plaintiff was subsequently interviewed by the OIAPR regarding the Dallas Incident. (Id. ¶ 32.)
On May 22, 2003, at plaintiff's request, plaintiff met with Jiminez and Spero to discuss the May 12, 2003 meeting. (Id. ¶ 34.) Jiminez reiterated that plaintiff would be fired and allegedly refused to listen to plaintiff's explanation of the Dallas Incident or read an affidavit plaintiff had provided to OIAPR. (Id.) Although Jiminez told plaintiff he would have the opportunity to rebut the charges against him, no opportunity was provided. (Id.)
Between May 22, 2003 and August 14, 2003, no one at FAMS discussed any alleged performance issues with plaintiff, and plaintiff began to receive less desirable assignments after the May 12, 2003 meeting. (Id. ¶¶ 37-38.) On August 14, 2003, plaintiff was terminated from probationary employment with FAMS.
(Id. ¶¶ 39-40.) Plaintiff's termination letter from Spero and Jiminez explained that he was fired due to tardiness, failing to report tardiness on his attendance records, and for the alleged breach of security in connection with the Dallas Incident. (Id. ¶ 39.)
C. Plaintiff's Employment at the U.S. Customs and Border Protection ("CBP")
In May 2007, plaintiff accepted a position as an
officer with CBP, contingent on his clearing a background investigation and receiving a "Top Secret" security clearance. (Id. ¶ 41.)
As part of the background investigation, the CBP investigator interviewed Jiminez and Shinske, who both stated that they "would not recommend [plaintiff] for a position of trust with the federal government." (Id. ¶¶ 46-47.) Jiminez also told the CBP investigator that he authorized plaintiff's termination from FAMS after reviewing the results of an investigation into plaintiff's "work habits and behavior" (id. ¶ 46), and Shinske told the investigator that plaintiff was repeatedly late for work and that he was involved in a security violation with his ex-fiance, presumably a reference to the Dallas Incident (id. ¶ 47).
On October 4, 2007, plaintiff received a Notice of Proposed Action ("NOPA") finding him "unsuitable for employment" with the CBP because his background investigation revealed "potentially derogatory information" concerning "Dishonest Conduct/Misconduct or Negligence in Employment." (Id. ¶ 42; ECF No. 60-2, NOPA (submitted by plaintiff) at 1.) The NOPA also mentioned that information from the background investigation "may be furnished to designated officers and employees of agencies and departments of the Federal Government for employment purposes, to include a security clearance determination." (NOPA at 2-3.)
Moreover, the NOPA contained the findings of plaintiff's background investigation, which revealed that although plaintiff claimed he had only been terminated by one employer (FAMS), he had previously been terminated from positions at the U.S. Postal Service and Social Security Administration and asked to resign from a position at Monroe College. (Id. at 1-2.) Further, the background investigation revealed that sources from FAMS stated that plaintiff was terminated from FAMS "after conducting an investigation on [his] work habits and behavior that involved a security violation and tardiness," specifically that plaintiff was tardy twenty-two times in a fourteen-month period. (Id. at 2.) Finally, the investigation revealed that plaintiff was disqualified for a Good Conduct Medal during his military service because of "unfavorable actions" and eighteen unexcused absences from training. (Id.) The NOPA informed plaintiff that he could respond to the issues raised by his background investigation, and plaintiff alleges that he submitted a timely response. (Id. at 1; Compl. ¶ 43.)
On October 17, 2007, the CBP background investigator recommended that plaintiff be granted a "Top Secret" security clearance, with a formal warning letter in his file. (Compl.
¶ 48.) On October 22, 2007, CBP officials recommended that plaintiff be denied a security clearance, citing an alleged "pattern of employment issues." (Id. ¶ 49.) On October 31, 2007, Joyce Wood, Director of CBP's Personnel Security Division, determined that plaintiff failed to pass his background check. (Id. ¶ 50.)
On December 17, 2007, plaintiff received a termination letter from Susan Mitchell, the New York Operations Director for CBP. (Id. ¶ 11.) The termination letter stated:
You were appointed to the position of CBP Officer with the understanding that you would be required to satisfactorily complete your background investigation. Your background investigation has revealed significant derogatory information. Subsequently, it has been determined that you have failed to meet the standards required to clear your background investigation. Therefore, I have no choice but to terminate your employment with CBP due to your failure to meet a condition of employment." (See ECF No. 60-3, Letter from Susan Mitchell dated December 13, 2007 ("Mitchell Termination Letter").) Subsequently, at a December 21, 2007 meeting, Mitchell told plaintiff that "she would have no problem with Corbett's continued employment with CBP if he had he passed his background check."*fn1 (Compl. ¶ 52.) Mitchell said she made her decision to terminate plaintiff based on Wood's recommendation, and had not read any of the documents plaintiff submitted in response to the NOPA. (Id.)
D. Plaintiff's Merit Systems Protection Board and Equal
Employment Opportunity Commission Complaints*fn2
Shortly after leaving FAMS, plaintiff challenged his FAMS termination
through the Merit Systems Protection Board ("MSPB") on due process and
procedural grounds. (ECF No. 57, Defendant's Statement of Undisputed
Material Facts Pursuant to Local Civil R. 56.1 ("Def. 56.1 Stmt.") ¶
8.) In the MSPB challenge, plaintiff did not allege that
discrimination or retaliation played a role in his termination from FAMS.*fn3
¶ 9.) The MSPB sustained plaintiff's removal on December 17, 2003. See
Corbett v. Dep't of Homeland Sec., No. NY-0752-03-0363-B-1, 2004 MSPB
LEXIS 2550 (M.S.P.B. Nov. 19, 2004).
On January 31, 2008, after his termination from CBP, plaintiff filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that he was terminated from employment with CBP as the result of race and color discrimination and retaliation (the "EEOC Complaint"). (Def. 56.1 Stmt. ¶¶ 16-17; see ECF No. 60-1, EEOC Complaint ("EEOC Compl.") at 1-2.) Specifically, plaintiff checked boxes on the EEOC Complaint labeled "race," "color," and "retaliation" to indicate the bases of his discrimination. (EEOC Compl. at 2.)
In the EEOC Complaint, plaintiff identified "U.S. CBP Personnel Security Division" as the "DHS component who took the action at issue." (Id.) Plaintiff also stated in the EEOC Complaint that the retaliation against him occurred on or after August 13, 2003, the approximate date of his termination from FAMS and several years before the beginning of his employment with CBP. (Id.; Pl. 56.1 Stmt. ¶ 29.)*fn4 Additionally, in Attachment A to the EEOC Complaint, plaintiff wrote:
[T]here was discrimination based on race and color that I experienced with the Federal Air Marshal Service involving circumstances dealing with my termination from them, which seems to have been used against me to warrant justification in the termination of employment with CBP. [. . .]
I am being discriminated against based on what were unfair and questionable actions taken against me while employed as a Federal Air Marshal, as well as unsubstantiated allegations, misunderstandings, and hearsay raised about ...