United States District Court, N.D. New York
JEROME R. JOHNSON, Plaintiff,
JACOB J. LEW, Secretary, Department of Treasury, Internal Revenue Service; SHARON FLOYD, Director, Diversity, Equal Employment Opportunity Commission; AMY ALBEE, Supervisor, Walk-in Unit, Internal Revenue Service; JEAN CAIN, Territory Manager, Walk-in Unit, Internal Revenue Service; and ANITA HILL, Area Director, Walk-in Unit, Internal Revenue Service, Defendants.
JEROME R. JOHNSON, Plaintiff, Pro Se, Albany.
KAREN FOLSTER LESPERANCE, ESQ, Assistant United States Attorney, HON. RICHARD S. HARTUNIAN, United States Attorney for the N.D.N.Y., Albany, NY, Counsel for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this employment discrimination action filed pro se by Jerome R. Johnson ("Plaintiff") against Jacob J. Lew, Sharon Floyd, Amy Albee, Jean Cain and Anita Hill ("Defendants"), is Defendants' motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, Defendants' motion is granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, liberally construed, Plaintiff's Complaint alleges that, while he worked as an Individual Taxpayer Advisory Specialist ("ITAS") with the Internal Revenue Service's ("IRS") Wage & Investment ("W&I") Field Assistance Office in Albany, New York, Defendants discriminated against him based on his race (African-American), gender (male) and age (69 years) when, on or about May 6, 2010, "management" refused to take any actions to "implement [his] suggestion... [that the IRS and its New York W&I Field Assistance Bureau] provide [the] short-term and long-term recruitment of low-income and minority students" in accordance with "established [IRS] and Bureau diversity policy." ( See generally Dkt. No. 1 [Plf.'s Compl.]; Dkt. No. 15 [Plf.'s Opp'n Memo. of Law].)
Plaintiff's Complaint further alleges that Defendants similarly discriminated against him, and/or retaliated against him for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"), when, on September 29, 2010, September 30, 2010, and October 4, 2010, "management" denied his requests for "Leave [W]ithout Pay ("LWOP"), charged him with being Absent Without Leave ("AWOL") and then docked his pay. ( Id. )
Based on these factual allegations, Plaintiff's Complaint asserts the following claims against Defendant: (1) a claim of race discrimination in violation of 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (2) a claim of gender discrimination in violation of 42 U.S.C. § 1983 and Title VII; (3) a claim of age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; and (4) a claim of retaliation in violation of 42 U.S.C. § 1983 and the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. ( Id. )
Familiarity with these claims and the factual allegations supporting them in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties.
B. Parties' Briefing on Defendants' Motion
Generally, in support of their motion to dismiss, Defendants assert six arguments: (1) to the extent that Plaintiff asserts claims under 42 U.S.C. § 1983, those claims fail because they do not allege facts plausibly suggesting that any acts were taken under color of state law; (2) even if Plaintiff's Section 1983 claims were liberally construed as Bivens claims, they would fail because the sole and exclusive remedy for a claim of federal employment discrimination is Title VII and the ADEA; (3) to the extent that Plaintiff asserts claims under Title VII and the ADEA, those claims fail because Title VII claims and ADEA claims would not lie against the individually named defendants, other than against Secretary Lew in his official capacity; (4) in the alternative, Plaintiff's claims under Title VII and the ADEA, including his claims against Secretary Lew in his official capacity, fail because they do not allege facts plausibly suggesting that (a) Plaintiff was subjected to a materially adverse employment action, (b) such action was taken because of his membership in a protected class, and (c) any of the acts complained of were taken by the individual defendants; (5) moreover, to the extent that Plaintiff intended to assert any individual-capacity claims against any named Defendants, such claims must be dismissed for lack of personal jurisdiction, because they have not been personally served under Fed.R.Civ.P. 4(i)(2)(B); and (6) finally, Plaintiff's retaliation claim under 42 U.S.C. § 1983 and the Equal Employment Opportunity Act must be dismissed because the claim fails to allege facts plausibly suggesting that he was engaged in protected activity, that any adverse action he experienced was causally connected to that protected activity, or that Defendants were personally involved in any such retaliation. (Dkt. No. 12, Attach. 1 [Defs.' Memo. of Law].)
Generally, in response to Defendants' motion, Plaintiff asserts four arguments: (1) with regard to Defendants' first and second arguments (i.e., that Plaintiff's claims do not allege state action, and that claims of federal employment discrimination do not arise under Bivens ), rather than being asserted under 42 U.S.C. § 1983 or Bivens, Plaintiff's claims are asserted under Title VII, the ADEA and the Equal Employment Opportunity Act; (2) with regard to Defendants' third argument (i.e., that Title VII claims and ADEA claims do not lie against the individually named defendants), "special discrimination cases against federal employees and agencies may be pursued under Title VII, " as stated in Section VI of the Civil Cover Sheet that was filed with Plaintiff's Complaint; (3) with regard to Defendants' fourth argument (i.e., that the Complaint fails allege facts plausibly suggesting the elements of the claims asserted, or even personal involvement by the supervisory Defendants), "Plaintiff has stated a valid complaint of racial discrimination by citing Defendants['] action against... minority students', in the Facts section of the initial complaint"; and (4) with regard to Defendants' fifth argument (i.e., that Plaintiff never personally served Defendants), ...