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Rebecca Spence v. Honorable Ray Lahood

January 28, 2013


The opinion of the court was delivered by: Hon. Jerome B. Simandle


SIMANDLE, Chief Judge:


Plaintiff Rebecca Spence alleges that she was terminated from her job at the Federal Aviation Administration ("FAA") because of discrimination on the basis of religion, race and national origin. She brings this action against the FAA, the United States Department of Transportation ("DOT"), and U.S. Secretary of Transportation Ray LaHood. The matter before the Court is Defendants' motion to dismiss certain claims and certain parties from this action. [Docket Item 14.]

Defendants move to dismiss all counts against the FAA and the DOT, leaving Ray LaHood as the sole Defendant, because the only proper defendant in a federal employment discrimination action is the head of the employing agency. [Def. Mot. Br. at 6-7; see 42 U.S.C. § 2000c-16(c) ("the head of the department, agency, or unit, as appropriate, shall be the defendant").] Defendants also move to dismiss all claims under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination ("LAD"), N.J. Stat. Ann. § 10:5-1, et seq., because Title VII of the Civil Rights Act of 1964*fn1 provides the exclusive remedy for claims of class-based discrimination and retaliation in federal employment. [Id. at 5-6.] Plaintiff concedes that these dismissals are proper. [Pl. Opp'n at 4.] Accordingly, the Court will dismiss with prejudice all claims against the FAA and the DOT and all claims under § 1981 and the LAD. An accompanying Order will be entered.

The sole remaining issue is whether Plaintiff sufficiently pleads a claim of a hostile work environment under Title VII case law. Because Plaintiff fails to plead facts, accepted as true, that form a plausible basis for relief, the motion to dismiss the hostile work environment claim will be granted.

II. Background

Plaintiff Rebecca Spence, also known as Khadijah Spence, is an African-American Muslim who wears a traditional head covering in public at all times, in accordance with her religious beliefs.*fn2 [Compl. ¶ 7.] In 2009, Plaintiff applied for the position of Management and Program Analyst with the FAA. [Id. ¶ 13.] While filling out her job application online, she checked a box indicating that she was eligible for a "derived veteran's disability preference," because her spouse resigned from the military due to an in-service injury. [Id. ¶ 14.] The hiring preference automatically added 10 points to her overall application score, which also took into account her skills and experience, among other criteria. [Id. ¶ 16.] Plaintiff was offered the job and began working at the William J. Hughes Technical Center in Atlantic City, N.J., in October 2009. [Id. ¶¶ 13.]

Plaintiff experienced no problems at work for approximately eight months and received favorable work evaluations during that time. [Id. ¶¶ 19-21.] However, in July 2010, Plaintiff's department reorganized and she was assigned a new supervisor, Isidore Venetos, who is neither African American nor Muslim. [Id. ¶ 21.] When Mr. Venetos met with his newly assigned staff, he allegedly told Plaintiff, in substance, "I bought a Quran so I can understand who you are." [Id. ¶ 23.] Plaintiff believed that he was referencing or and commenting on her head covering. [Id.] Plaintiff asserts that Mr. Venetos "immediately began to question and criticize plaintiff's work performance and berate her for no apparent reason . . . ." [Id. ¶ 24.] In addition, "several of plaintiff's co-workers made negative comments about her head covering." [Id.] One of Plaintiff's co-workers, also a Muslim woman who wore traditional head covering, told Plaintiff that someone*fn3 had told the co-worker, in substance, "If you take that rag off your head, you will get somewhere in the FAA." [Id. ¶ 35.]

Around the same time, the Technical Center underwent an audit and a subset of personnel records were examined, purportedly at random, for compliance with federal statutory hiring requirements and FAA regulations. [Id. ¶ 22.] Plaintiff's records were audited. [Id.] A few months later, Plaintiff was told that an error had been discovered related to her derived veteran's disability preference, and she would have to provide proof that "her husband was 100% disabled and separated from federal employment due to an in-service related disability or unable to obtain federal employment due to that disability . . . ." [Id. ¶¶ 25-26.] In fact, Plaintiff's spouse was 30 percent disabled, and Plaintiff contends that she indicated that fact on her application. [Id. ¶¶ 15, 25-26.] Nonetheless, a personnel manager told Plaintiff that she would be terminated before her one-year probation period expired on October 26, 2010, because she did not qualify for the derived veteran's disability preference. [Id. ¶ 29.] She was terminated on October 15, 2010, "effectively den[ying] plaintiff all right of appeal with the Merit System Protection Board." [Id. ¶ 30.] Plaintiff was retained as a temporary employee to "train her replacement." [Id. ¶¶ 32-33.] The temporary position lasted through February 2, 2011, after which Plaintiff left the FAA. [Id. ¶¶ 32, 36.]

Upon termination from her permanent position, in October 2010, Plaintiff filed a Freedom of Information Act ("FOIA") request for records related to her personnel records audit. [Id. ¶ 34.] She alleges that John Wilkes, a "FOIA representative," told her, in substance, "You know they don't like Muslims here. You suffer the consequences of the choices that you make. You choose to come in here dressed like that." [Id.]

Plaintiff filed an Equal Employment Opportunity complaint of discrimination with the U.S. DOT Departmental Office of Civil Rights, and the agency dismissed her claim on April 5, 2011. [Id. ¶ 6.] Plaintiff then filed the present action, alleging six counts: discrimination on the basis of race, national origin*fn4 and religion under Title VII [Id. ¶¶ 46-54]; retaliation in violation of Title VII [Id. ¶¶ 55-57]; retaliation in violation of the 42 U.S.C. § 1981 [Id. ¶¶ 40-45]; and racial and religious discrimination and retaliation under the LAD. [Id. ¶¶ 58-60.]

III. ...

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