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Suri v. Foxx

United States District Court, D. New Jersey

December 19, 2014

HARISH SURI, Plaintiff,
v.
HONORABLE ANTHONY R. FOXX, ET AL., Defendants

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[Copyrighted Material Omitted]

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For HARISH SURI, Plaintiff: EUGENE MATTIONI , LEAD ATTORNEY, MATTIONI, LLP, SWEDESBORO, NJ.

For HONORABLE ANTHONY R. FOX, FEDERAL AVIATION ADMINISTRATION, UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, WILLIAM J. HUGHES TECHNICAL CENTER, SHELLEY YAK, MANAGER CENTER OPERATIONS GROUP, HOWARD KIMPTON, FACILITIES OPERATION TEAM, KEITH BUCH, MANAGER ENVIRONMENTAL, HEALTH & SAFETY, JAY REPKO, ENVIRONMENTAL PROTECTION SPECIALIST, SHARON SPECTOR, ADMINISTRATIVE CONTRACTING OFFICE REPRESENTATIVE, CARLEEN HOUSTON, MANAGER, DONNA TAYLOR, QA/QC, DEBORAH GERMAK, CONTRACTS BRANCH MANAGER, PAUL LAWRENCE, SAFETY MANAGER, JOHN FLOYD, ENVIRONMENTAL PROTECTION SPECIALIST, Defendants: JOHN ANDREW RUYMANN, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY, TRENTON, NJ.

OPINION

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HONORABLE JOSEPH E. IRENAS, Senior United States District Judge.

This employment discrimination action appears before the Court on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).[1] For the reasons

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below, the Motion will be DENIED in part and GRANTED in part.

I. Relevant Facts

Plaintiff Harish Suri (" Suri" ) alleges in his Second Amended Complaint (" Complaint" ), filed April 16, 2014, the facts below, which the Court accepts to be true in deciding the instant Motion.

Suri is an American citizen of Indian descent who provided contracting services as an Environmental Engineer to the Federal Aviation Administration (" FAA" ) for nearly 18 years. (Second Am. Compl. ¶ 14, 19, 35) Suri began his affiliation with the FAA when he completed a summer internship in 1995 (Id. ¶ 16), and he continued to provide services through two contracting firms -- Hi-Tec Systems (" Hi-Tec" ) beginning September 1995 (Id. ¶ 18) and EIT, Inc. (" EIT" ) beginning March 2008 (Id. ¶ 24) -- until his FAA contractor position was terminated on or about March 29, 2013. (Id. ¶ 37)

Suri has a Bachelor's Degree in Electrical Engineering, a Master's Degree in Engineering Science, and a Master's Degree in Environmental Engineering. (Id. ¶ 15) He has also completed several training and certification programs while on the job. (Id.) Following his internship with the FAA, he was hired by Hi-Tec to continue working on site with the FAA as an Environmental Engineer. (Id. ¶ 19) Suri was interviewed by Kenneth L. Stroud and Defendant Howard Kimpton of the FAA to fill the FAA funded contract position with Hi-Tec. (Id. ¶ 18) During the 13 years Suri worked for Hi-Tec, providing contract support to the FAA, he reported directly to Stroud and Defendant Kimpton. (Id.) Beginning March 2008, Plaintiff continued his work at the FAA through EIT, a different contractor, until March 29, 2013.

Throughout the 18 years relevant to his Complaint, Plaintiff asserts that " [h]e reported to the FAA building, was given an office cubicle in the building and all of his work tools," including his furniture and equipment, and that " [h]is FAA supervisors approved his vacation and discretionary time off[,] . . . decided his work assignments, and approved or rejected his work and reports." (Second Am. Compl. ¶ 20) He also asserts that " [a]ll of his assignments were given by the FAA and under its supervision and oversight" and that he " reported to FAA superiors who had the right to hire, discipline and terminate him." (Id.) In addition, " [t]he FAA had exclusive control over his work assignments," providing him instruction and training, and " FAA supervisors assigned key and non-key positions at their exclusive discretion." (Id.)

Plaintiff asserts that he repeatedly asked his supervisor Defendant Kimpton for a permanent position with the FAA, but Defendant Kimpton discouraged him, telling him the government was in a hiring freeze or that it would be a big pay cut for Plaintiff.[2] (Second Am. Compl. ¶ ¶ 17, 25, 26) Nonetheless, Plaintiff alleges that at least ten other Caucasian employees were

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hired into permanent positions. (Id. ¶ ¶ 21-22, 25-26) Though Plaintiff does not specify the qualifications of each of these employees in comparison to his own, he notes that at least three had completed only Bachelor's degrees, and that he had trained at least one of them himself, when she was a summer intern. (Id. ¶ ¶ 21, 25) The FAA never hired Plaintiff as a permanent employee and ultimately reassigned his duties to a non-key position for which funding was terminated.

Plaintiff alleges that he suffered discriminatory treatment as early as his summer internship with the FAA in 1995, when his director supervisor, FAA employee Defendant Keith Buch " never responded to [Plaintiff's] formal greetings and would look the other way during face to face meetings" and " made unprofessional comments about the quality of [Plaintiff's] work behind his back." (Second Am. Compl. ¶ 23) Sometime in or after April 2012, when Buch became manager, Buch's discriminatory behavior allegedly increased, as he " negatively commented on the education standard of Pennsylvania State University, where [Plaintiff] received one of his Master's Degrees, and on the quality of [Plaintiff's] work" even though Plaintiff " consistently received excellent performance appraisals . . . based on FAA recommendations" and " was endorsed several times in writing by FAA managers and headquarters." (Id. ¶ 27)

Also during this time period, in or after April 2012, Defendant Donna Taylor allegedly began to " yell and scream" at Plaintiff during meetings and " used derogatory and humiliating comments," frequently pointing to Plaintiff as " 'YOU PEOPLE,' referring to his being Indian and of the Hindu religion." (Second Am. Compl. ¶ 28) Plaintiff responded on June 12, 2012, to Taylor's behavior by filing a formal complaint with Program Manager Nancy Davenport-Masi, but he was never informed that any action was taken on that complaint. (Id.)

Plaintiff alleges that after he filed the complaint, Defendants Buch and Jay Repko retaliated against him by holding a meeting on January 18, 2013, from which Plaintiff was explicitly excluded. (Second Am. Compl. ¶ ¶ 29-30) Plaintiff was told by a co-worker that was present during that meeting that Buch and Repko criticized Plaintiff's work, despite never giving him negative feedback during his progress meetings, and made comments such as " WHERE DO THESE PEOPLE COME FROM," " HOW DO THEY WORK IN THEIR COUNTRY," and " THAT F IN INDIAN DOESN'T KNOW HOW TO DO HIS JOB." (Id.)

In February 2013, Plaintiff asserts that he " was the only employee whose job position category was changed from key-personnel to non-key personnel," the latter of which the government has no commitment to fund when a new contract is awarded. (Second Am. Compl. ¶ 33) When EIT bid on the contract, Plaintiff's non-key position was, as expected, not funded by the FAA and on March 26, 2013, the FAA told Plaintiff that he would be terminated. (Id. ¶ 35) Under the same contract, Plaintiff alleges that the FAA upgraded at least two Caucasian Americans with fewer years of experience than Plaintiff and only Bachelor's degrees from non-key to key personnel and at the same time retained two more Caucasian American personnel, despite the categorization of their positions as non-key. (Id. ¶ 33, 35, 37)

In his Complaint, Plaintiff alleges five counts: discrimination on the basis of (1) race, (2) religion, and (3) ethnicity; (4) retaliation; and (5) conspiracy to deprive Plaintiff of the rights and privileges accorded under law. All five counts are brought pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-1, et seq.,

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and Count Five is additionally brought directly under the Fifth Amendment of the United States Constitution [3] pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint " for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Fed.R.Civ.P. 8(a)(2).

When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all allegations in the complaint and view them in the light most favorable to the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). In reviewing the allegations, a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Instead, the complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Finally, the Court considers " only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). A document forms the basis of a claim when it is " integral to or explicitly relied upon in the complaint." Id. (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).

III. Discussion

Defendants move to dismiss Plaintiff's Complaint, including both his Bivens and Title VII claims.

Defendants move to dismiss Plaintiff's Bivens claim under the Fifth Amendment of the U.S. Constitution on the grounds that a) Title VII precludes the application of a Bivens remedy; b) special factors in this case counsel hesitation against implying a Bivens remedy, even if it were not barred by Title VII; c) sovereign immunity precludes a Bivens claim against all named defendants except those sued as individuals; d) qualified immunity precludes a Bivens claim against those defendants sued as individuals; e) respondeat superior liability does not apply, so individuals may be held responsible for their own behavior only and cannot be treated in the aggregate; f) the statute of limitations bars recovery for any claims earlier than two years prior to the filing of the complaint; and g) Plaintiff has failed to plead sufficient facts to support a claim of conspiracy to deprive him of the rights and privileges accorded under law.

Defendants move to dismiss Plaintiff's Title VII claims on the grounds that a) Title VII applies only to employers, and

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the FAA was not Plaintiff's employer, since Plaintiff provided contract services only; b) Title VII allows suit against the head of an agency only, not against individual defendants; c) Plaintiff has failed to allege any facts to state a claim of discrimination on the basis of religion under Title VII; d) Plaintiff does not identify with sufficient specificity the hiring decisions to which he objects[4] e) Plaintiff has failed to allege sufficient facts to state a hostile work environment claim because he alleges only " isolated workplace comments," not the severe or pervasive conduct required; and f) Plaintiff has failed to allege ...


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