United States District Court, W.D. New York
STEPHEN L. ATTERBURY, Plaintiff,
UNITED STATES MARSHALL SERVICE; GARY INSLEY, Contracting Officer, Office of Security Contracts, Judicial Security Division, United States Marshall Service, in his individual capacity; and JOHN DOE, in his individual capacity, Defendants.
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
The Plaintiff, Stephen Atterbury, was a Court Security Officer (CSO) at the United States Courthouse in Rochester, New York and is challenging the U.S. Marshall Service's (USMS) decision removing him from CSO duty after he allegedly left his post. The Plaintiff is an employee of Akal Security, Inc. (Akal), a company with which the USMS contracts to provide security services in the Second Circuit. The Plaintiff claims that in ordering him removed from CSO duty, the USMS denied him due process and acted arbitrarily and capriciously.
The Court referred the case to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1). The Defendants filed a motion to dismiss the complaint under Rule 12(b)(6) or, in the alternative, a motion for summary judgment under Rule 56. The Plaintiff responded and also filed a cross-motion under Rule 56(d) requesting that consideration of the USMS's summary judgment motion be deferred until additional discovery could be conducted. Magistrate Judge Foschio issued a Report and Recommendation that recommends granting the USMS' motion to dismiss and denying the Plaintiff's Rule 56(d) motion.
Pursuant to 28 U.S.C. § 636(b)(1), the Court must make a de novo review of those portions of the R&R to which objections have been made. Upon a de novo review of the R&R, and after reviewing the submissions and hearing argument from the parties, the Court adopts Magistrate Judge Foschio's recommendation that the Defendants' motion to dismiss be granted and that the Plaintiff's Rule 56(d) motion be denied.
A. The U.S. Marshall Service's Contract with Akal
The USMS contracts with Akal to provide security services at the federal courthouses in the Second Circuit. Dkt. No. 23 ¶ 6. Akal, in turn, employs individuals to serve as CSOs under the terms of the USMS-Akal contract. Among those terms is a provision that "[a]ll CSOs... shall comply" with a number of CSO "performance standards, " including, as is relevant to this case, the requirement that CSOs "[n]ot close or desert any post prior to scheduled closure unless directed to do so by the supervisor. [CSOs are to] [r]emain at [their] assigned post until properly relieved or until the time post is to be secured." USMS-Akal Contract § C-12(b)(31), Dkt No. 23-1 at 11.
Several other provisions of the USMS-Akal contract are relevant to this case. First, the contract provides that the USMS "reserves the right at all times to determine the suitability of any [Akal] employee to serve as a CSO" and that "[a]ny decision to continue a[n] [Akal] employee in a CSO capacity will be made solely by the [USMS] Office of Court Security on a case-by-case basis." Id. § H-3(b), Dkt. 23-1 at 14 (emphasis added). Second, "any employee provided by [Akal] that engages in actions... or any activity that affects the integrity of the judicial process or is likely to compromise the security of the courts, shall be removed from performing services for the Government under th[e] contract, and shall not be reassigned to th[e] contract without the concurrence of the Contracting Officer." Id. § H-3(e), Dkt. 23-1 at 15. Finally, the contract provides that if the USMS determines that an Akal employee should be removed from CSO duty, both Akal and the employee are entitled to provide a written response addressing the removal within fifteen days of the Contracting Officer's initial removal notice. Id. § H-3(e), Dkt. 23-1 at 15. However, "[t]he Contracting Officer and Office of Court Security shall make the final determination of [Akal employee] suitability." Id. § H-3(c), Dkt. 23-1 at 14.
B. The Events Leading to the Plaintiff's Removal from the USMS-Akal Contract
After retiring from a twenty-four year career as a U.S. Postal Inspector, in 2002 the Plaintiff was hired by Akal to work as a CSO in the Kenneth B. Keating Federal Building in Rochester, New York, which houses, among other things, the Rochester Division of the U.S. District Court for the Western District of New York. Dkt. No. 29-2 ¶¶ 2, 4. The Plaintiff acknowledges that "[b]efore the USMS approved [the Plaintiff] to work in the court I was presented with [the USMS's] performance standards and reviewed them. I then signed an acknowledgement of the same." Id. at ¶ 5. By all accounts, the Plaintiff's service as a CSO was not questioned until the events giving rise to this litigation.
On February 24, 2011, the Plaintiff was assigned to "a special post." Id. ¶ 11. Congresswoman Louise Slaughter, whose office is also located in the Keating Building, was scheduled to hold a constituent meeting in the building's basement, and the Plaintiff was assigned to provide security for the meeting. Id. The Plaintiff states that he felt progressively ill on February 24 and "would have left earlier, except I was specifically assigned to this post on account of the meeting." Id. "Shortly before" 1:30 p.m., approximately half-an-hour after the meeting was to have started, another CSO approached the Plaintiff outside the meeting room and told the Plaintiff that the meeting had been cancelled. Id. ¶ 12. An announcement of the cancellation had apparently been made over the radio earlier in the day. Id.
Accounts of the events that followed on February 24 are disputed, but the disputes are not relevant to the Court's disposition of this case. Because the case is before the Court on the Defendants' motion to dismiss, the Court views the facts in the light most favorable to the Plaintiff. After learning that the meeting with Congresswoman Slaughter had been cancelled, the Plaintiff informed the Acting Lead CSO in the Keating Building that he was not feeling well, would be going home, and likely would not be at work the following day. Id. ¶ 12. The Acting Lead CSO "approved [the Plaintiff's] early departure, saying See ya'" to the Plaintiff. Id. The Plaintiff claims that he "was not upset when [he] left work on February 24, " but he acknowledges that "[he] was sick and may well have appeared out of sorts to others." Id. ¶ 13. The Plaintiff then secured his weapon, changed out of his uniform, and left the Keating Building at approximately 1:35 p.m. Id. ¶ 15.
C. Akal's Investigation of the Plaintiff's Conduct and the USMS's Responses
Several days later, Gary Insley-the named defendant in this case, and the USMS Contracting Officer assigned to the USMS-Akal contract-acting pursuant to the USMS-Akal contract, requested that Akal investigate whether the Plaintiff's actions on February 24 had violated CSO Performance Standard 31. Dkt. No. 23 at ¶ 7. (As noted above, Performance Standard 31 provides that CSOs shall not leave their assigned post until they are relieved or are directed to do so by a supervisor.) Akal sent its contract manager, a retired New York City Police lieutenant, to Rochester to investigate. Id. ¶ 8; Dkt. No. 42 at 6. Akal's contract manager produced a four-page report that concluded that the Plaintiff had not violated CSO Performance Standard 31 because "[t]he special post to which [the Plaintiff] was assigned was discontinued long before he left the post." Id. at 21.
After receiving the report, Insley informed Akal that he "did not concur with Akal's findings and requested that Akal reconsider." Id. ¶ 13. Insley's concern was that Akal's investigator did not adequately interview a USMS employee who was working at the Keating Building on February 24 and who "clearly saw [the Lead CSO] say he needed to write [the Plaintiff] up for this incident, after witnessing [the Plaintiff] leave in a huff." Id. at 25. Akal responded with a letter stating that "[t]he USMS has not provided Akal with any information or documentation to consider that indicates [the Plaintiff] abandoned his post as alleged by the USMS" and therefore concluded that "Akal must stand by its intended action." Id. at 37.
Insley then sent Akal a second letter stating that the Plaintiff's actions "have undermined the District's confidence and trust in [his] ability to effectively perform his duties" and accordingly directed, acting pursuant to the USMS's authority under the USMS-Akal contract, that the Plaintiff be "permanently removed from performing under the USMS contract." Id. at 31. Insley noted in his letter that "[i]f this decision is unacceptable to Akal, the disagreement shall be considered a dispute for purposes of the Contract Disputes Act." Id.
As the USMS-Akal contract requires, Insley provided Akal and the Plaintiff with an opportunity to respond, in writing, to Insley's decision, which the Plaintiff did. Id. at 34. Insley then responded in a third letter, stating that "the USMS does not concur and the appeal of removal is... denied." Id. at 36 (emphasis in original). Insley again noted that "[i]f this decision remains unacceptable to Akal, the ...