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Walia v. Napolitano

United States District Court, E.D. New York

December 2, 2013

SUNIL WALIA, Plaintiff,
JANET NAPOLITANO, as Secretary of the United States Department of Homeland Security, Defendant

Order Filed: February 4, 2014

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For the Plaintiff: Louis D. Stober, Jr., Esq., Albina Kataeva, Esq., Of Counsel, Law Offices of Louis D. Stober, Jr., LLC, Garden City, NY.

For the Plaintiff: Paul Bartels, Esq., Of Counsel, Kenneth M. Piken & Associates, Jericho, NY.

For the Defendant: Vincent Lipari, Assistant United States Attorney, Loretta E. Lynch, United States Attorney Eastern District of New York, Central Islip, NY.


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ARTHUR D. SPATT, United States District Judge.

On May 25, 2011, the Plaintiff Sunil Walia (the " Plaintiff" ) commenced this action against the Defendant Janet Napolitano, as the former Secretary of the United States Department FILED of Homeland Security (the " DHS" ), asserting (1) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; (2) intentional and negligent infliction of emotional distress; and (3) violations of the federal Privacy Act, 5 U.S.C. § 552a.

Pursuant to Local Rule 50.3.1(a), this case has been deemed related to another case, Walia v. Holder, et al., 12-cv-45944, which was commenced on December 3, 2012. On November 18, 2013, that case was reassigned from United States District Judge Sandra L. Townes to this Court. There was also another case brought by the Plaintiff against a prior Secretary of the DHS, Michael Chertoff. Walia v. Chertoff, 06-CV-6587 (JBW), 2008 WL 5246014 (E.D.N.Y. Dec. 17, 2008), which settled in December 2008.

In this case, presently pending before the Court is a motion by the DHS (1) for partial summary judgment pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 56 dismissing the Title VII cause of action; and (2) to dismiss the emotional distress and Privacy Act claims pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons set forth, the motion is granted in part and denied in part.


The following facts are drawn from the parties Rule 56.1 statement and the pleadings and construed in a light most favorable to the Plaintiff. Material disputes are noted.

The Plaintiff has at all times relevant to this action been employed by the DHS as a Special Agent in the U.S. Immigration

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Customs Service, Office of Investigations, John F. Kennedy International Airport Office. The Plaintiff's race is Asian, his national origin is Indian, and his religion is Sikhism.

This litigation arises out of a March 13, 2008 incident involving a stop of an individual named Juan Bermudez. The parties dispute whether Bermudez was under investigation for child pornography.

On that date, while returning on an inbound flight at JFK airport, Bermudez was stopped by Customs and Border Patrol Officer Wilson Olivencia. At some point, the Plaintiff interviewed Bermudez and the Plaintiff retained, with Bermudez's written consent, custody of Bermudez's computer and CD/DVDs.

However, due to forgetfulness, the Plaintiff kept the computer and CD/DVDs locked in his bottom desk drawer from March 13, 2008 until October 1, 2008. He did not tell anyone that he had these items, nor did he make any written entry or open a file indicating that he had them.

In September 2008, Special Agent Robert Raab, through an interview of Bermudez and a discussion with Olivencia, learned that the Plaintiff had Bermudez's items. On October 1, 2008, Raab took custody of the computer and CD/DVDs. Special Agent Christopher Doyle, a Certified Forensic Analyst, later found child pornography on the computer and CD/DVDs. The Forensic Analysis Report also revealed that the computer had not been accessed since February 2006.

In October 2008, the Plaintiff received a negative annual performance appraisal, which referred to, among other things, the March 2008 laptop incident. As a consequence, the Plaintiff made a formal complaint to the EEO. In December 2008, the parties settled that dispute and the DHS agreed to " purge" the October 2008 annual performance appraisal from his official personnel folder.

In the interim, on November 17, 2008, Raab, and his supervisor, Dennis McSweeney, presented the Bermudez case for prosecution to Eastern District of New York Assistant U.S. Attorney Judy Philips, Chief of Intake and Arraignment. Philips declined to accept the case, apparently because the Plaintiff's mishandling of the evidence would be " Giglio" material that the United States would be obligated to disclose to the defense and which would compromise a prosecution. According to the Plaintiff, McSweeney failed to disclose certain mitigating circumstances to Philips, including, among other things, that the computer had not been accessed since February 2006.

By memorandum dated November 24, 2008, McSweeney informed Special Agent In-Charge (" SAC" ) Peter Smith of the facts and circumstances leading up to the investigation and declination of prosecution of Bermudez. On January 7, 2009, Smith forwarded a request to the Office of Professional Responsibility (" OPR" ) to investigate the Plaintiff's handling of the laptop computer and CD/DVDs retained from Bermudez.

On March 25, 2009, Group Supervisor Juan Figueroa, of the DHS's San Juan office, was assigned as a Fact Finder to conduct an administrative inquiry into the allegations contained in the January 2009 memorandum. Figueroa personally interviewed and obtained affidavits from, among others, Raab and Olivencia. Following this investigation, on August 11, 2009, Figueroa concluded:

SA WALIA not only did not examine Bermudez's computer and or CDs/DVDs, but took no action to have the property analyzed by qualified personnel. Furthermore SA WALIA admitted he " forgot" the computers in his desk,

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but made misleading statements . . . suggesting that the property had been examined and no child pornography was found. The allegations of false statements against SA WALIA is hereby SUBSTANTIATED.
Additionally, this inquiry has revealed that SA WALIA was negligent and/or careless in the performance of his duties. SA WALIA'S overall failure to properly manage the examination of Bermudez's property, had a negative impact on an official ICE investigation and substantially affected the prosecution of the case. Consequently, Fact Finder Figueroa hereby determines that SA WALIA was negligent in performing his duties as a Senior Criminal Investigator.

(DHS's Rule 56.1 Statement, Exh B., at 12.)

By notice dated September 16, 2009, the Plaintiff was placed on paid administrative leave. The notice explained that " [t]his action is being taken based on an administrative investigation relating to your handling of a laptop computer that was taken from a passenger at John F. Kennedy Airport." (Id., Exh E.) The notice provided that Plaintiff was prohibited " from entering any and all [DHS] worksites or associated spaces for any purpose without prior appeal." (Id.) The notice also stated that the Plaintiff had to relinquish all official government-issued credentials.

On September 17, 2009, the Plaintiff filed an appeal with the Merit System Protection Board (" MSPB" ). The MSPB ultimately dismissed the Plaintiff's appeal for lack of jurisdiction. The Plaintiff also filed a complaint with the Office of Special Counsel (" OSC" ).

By notice dated April 29, 2010, the DHS's Discipline and Adverse Actions Panel (" DAAP" ) proposed as further punishment the Plaintiff's removal from federal service for failure to properly safeguard potential evidence and lack of candor. The Plaintiff disputed the underlying allegations, asserting that the DHS's actions were taken against him in retaliation for his previous EEO complaint.

On August 4, 2010, the Plaintiff contacted an EEO counselor to allege discrimination and retaliation by Smith and two other DHS officials. In his " Informal EEO Complaint," filed on August 27, 2010, the Plaintiff alleged thirteen instances of discrimination or retaliation. For example, the Plaintiff alleged that, during the period between January 2009 and September 2009, his work assignments were curtailed and limited to cases dealing with counterfeit goods. The Plaintiff also alleged that, during the period between April 6, 2009 and April 17, 2009, he was required to attend a training course in investigating commercial fraud. The Plaintiff also asserted that his placement on administrative leave in September 2009 denied him an opportunity to, among other things, work and gain experience; compete for jobs, transfers, and promotions; earn language pay and a cash award; enter DHS worksites and associated spaces without prior approval; and come to the office to receive his annual performance appraisal.

Of relevance here, by letter dated November 9, 2010, DHS's EEO office dismissed as untimely all of the Plaintiff's claims that did not arise within the 45 days before the Plaintiff contacted the EEO counselor on August 4, 2010.

By decision dated November 4, 2010, the DAAP, through Claude Arnold, the SAC of the DHS's Los Angeles office, sustained the charges of mishandling potential evidence but not the charge of lack of candor. Arnold imposed a 14-day suspension, which the Plaintiff served from November 8-21, 2010.

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The Plaintiff subsequently filed a complaint statement with the New York District Office of the Equal Employment Opportunity Commission (" EEOC" ), contending that the harassment faced by the Plaintiff was of a continuing nature.

On November 22, 2010, the Plaintiff was involuntarily and permanently transferred to the SAC/NY office.

On February 4, 2011, David Suna, who represented the DHS before the MSPB emailed SAC James Hayes the following statement: " It is my understanding that the EEO investigator is interviewing management in the Walia case. Just a reminder I am available to review affidavits. Feel free to let the relevant managers know or feel free to identify them for me and I can contact them directly." (Lipari Decl., Exh F.) This email was later related to " all personnel."

Thereafter, the Plaintiff filed the instant action. As noted above, the Plaintiff asserts claims for (1) Title VII violations; (2) intentional and negligent infliction of emotional distress; (3) Privacy Act violations. Presently pending before the Court is the motion by the DHS for partial summary judgment dismissing the Title VII claim and motion to dismiss the second and third causes of action sounding in intentional and negligent infliction of emotional distress and the federal Privacy Act.


A. Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment " shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The court must view the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). It may disregard unsupported assertions of either party and review the record independently. See e.g., Palmieri v. Lynch, 392 F.3d 73, 83 (2d Cir. 2004) (finding that plaintiff " introduced no evidence in opposing summary judgment to rebut the record evidence" ).

In a case alleging discrimination, the inquiry is whether the plaintiff's race, color, or national origin " caused the conduct at issue often requires an assessment of individuals' motivations and state of mind, matters that call for a sparing use of the summary judgment device because of juries' special advantages over judges in this area." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (internal citations and quotation marks omitted). Nonetheless, an employment discrimination plaintiff faced with a properly supported summary judgment motion must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., 475 U.S. at 586. He must present evidence sufficiently precise to allow a reasonable jury to find in his favor. See McCarthy v. N.Y. City Technical College, 202 F.3d 161, 167 (2d Cir. 2000).

B. Title VII

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual " with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1), and from retaliating against an employee for complaining about such discrimination. 42 U.S.C. § 2000e-3(a). Title's VII's protections

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extend to employees of executive agencies. 42 U.S.C. § 2000e-16.

" Prior to bringing suit under . . . Title VII . . ., a federal government employee must timely 'exhaust the administrative remedies at his disposal.'" Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001) (per curiam) (quoting Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1998)). " The process a federal employee must take to exhaust his or her administrative remedies is somewhat different than the process a private sector employee must follow." Burton v. Am. Fed'n of Gov't Employees (AFGE) 1988, 11-CV-1416 (SLT)(LB), 2012 WL 3580399, at *6 (E.D.N.Y. Aug. 17, 2012). Federal employees who believe that they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult an EEO Counselor prior to filing a complaint in order to try to informally resolve the matter. 29 C.F.R. § 1614.105(a). The EEOC regulations require that an " aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1).

In this case, the Plaintiff's Title VII allegations can be separated into four categories: (1) alleged wrongful accusation in January 2009 and the OPR investigation in June 2009; (2) assignment to training for 10 days in March 2009; (3) alleged discriminatory job assignments from January to September 2009; and (4) Plaintiff's placement on administrative leave on September 16, 2009. Each of these allegations fall outside the 45-day time frame prior to the Plaintiff's initial contact with the EEO on August 4, 2010.

The Plaintiff first contends that he was not obligated to file an EEO charge for the previously delineated acts because they were retaliation for and are reasonably related to his October 2008 complaint filed with the EEO. Thus, the Plaintiff maintains that all of his claims predating June 20, 2010, 45 days prior to August 4, 2010, are timely as they are reasonably related to his October 2008 EEO charge.

" Claims not raised in an EEOC [or EEO] complaint . . . may be brought in federal court if they are 'reasonably related' to the claim filed with the agency." Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006)(citing Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). The Second Circuit has identified three specific situations in which there is " reasonable relation" : if " (1) the [new] claim would fall within the reasonably expected scope of an EEO[ ] investigation of the charges of discrimination; (2) [the new claim] alleges retaliation for filing the EEO[ ] charge; or (3) the plaintiff 'alleges further incidents of discrimination carried out ...

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