Abdallah v. Napolitano

• Decision Date: 22 February 2013
• Docket Number: No. 09–CV–0861–JTC.,09–CV–0861–JTC.
• Citation: 909 F.Supp.2d 196
• Parties: Jamel E. Ben ABDALLAH, Plaintiff, v. Janet NAPOLITANO, Secretary, United States Department of Homeland Security, Defendant.
• Court: U.S. District Court — Western District of New York

909 F.Supp.2d 196

Jamel E. Ben ABDALLAH, Plaintiff,

v.Janet NAPOLITANO, Secretary, United States Department of Homeland Security, Defendant.

No. 09–CV–0861–JTC.

United States District Court,

W.D. New York.

Nov. 9, 2012.

Order Denying Reconsideration Feb. 22, 2013.

Lindy Korn, Charles L. Miller, II, Richard Joseph Perry, Jr., Law Office of Lindy Korn, Buffalo, NY, Dariush Keyhani, Meredith & Keyhani, PLLC, New York, NY, for Plaintiff.

Michael S. Cerrone, U.S. Attorney's Office, Buffalo, NY, for Defendant.

JOHN T. CURTIN, District Judge.

Plaintiff Jamel E. Ben Abdallah brought this action on October 5, 2009, against Defendant Janet Napolitano, Secretary of the United States Department of Homeland Security (“DHS”), alleging discriminatory discharge from his employment as a Customs and Border Protection (“CBP”) officer, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e–17 (“Title VII”). The parties have filed cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

For the reasons that follow, defendant's motion is granted, and the case is dismissed.

BACKGROUND

Mr. Abdallah was born and raised in Tunis, Tunisia. See Deft. Exh. 1 (p. 4). ¹ He emigrated to the United States in January 2001, following his marriage in Tunisia to a U.S. citizen, Michelle Hulse, on September 16, 2000. He became a U.S. citizen in 2005. Id. (pp. 4, 7).

Plaintiff began his employment with CBP in October 2007 as an intern under the Federal Career Intern Program (“FCIP”), which is a 2–year “excepted service” program established to “provide the career interns with formal training and developmental opportunities to acquire the appropriate agency-identified competencies needed for conversion” to a career-track “competitive service” position. 5 C.F.R. § 213.3202( o )(9) (effective May 11, 2006 to July 9, 2012). Plaintiff signed an FCIP Employment Agreement on October 8, 2007, acknowledging that:

Career Interns serve a trial period of 2 years. During this time, the Intern's performance, development, conduct, and general suitability for continued employment will be assessed. Employment may be terminated during this time due to work performance or conduct reasons. Interns are not required to serve an additional trial or probationary period following conversion to the competitive service.

...

There is no guarantee or entitlement to conversion.

Deft. Exh. 2 (p. 28).

Upon completing training at the Federal Law Enforcement Training Center (“FLETC”), plaintiff was assigned to the Port of Buffalo in the position of CBP Officer. On March 17, 2008, plaintiff signed an “Acknowledgment of Receipt of Conduct Information” form indicating that he received several documents outlining the CBP's policy on employee ethics, including the CBP Standards of Conduct. Deft. Exh. 4 (p. 43). Section 5.1 of the CBP Standards of Conduct explains that:

Every CBP employee is required to: (1) know the Standards of Conduct and their application to his or her behavior; (2) seek information from his or her supervisor if unsure of the application of the Standards of Conduct; (3) adhere to the Standards of Conduct; and (4) be aware of the consequences of violation of the Standards of Conduct ....

Deft. Exh. 3 (p. 31). In addition, section 6.4.2 of the CBP Standards of Conduct states, “[w]hen directed by competent authority, employees must truthfully and fully testify, provide information, or respond to questions (under oath when required) concerning matters of official interest that are being pursued administratively.” Id. (p. 32).

In July 2008, the DHS Office of Inspector General (“DHS–OIG”) ² opened an investigative file based on information received by the DHS Joint Intake Center from a confidential source (“CS”) that “a CBP Officer trainee slated to begin working in Buffalo ... has indicated a willingness to assist in arranging a fraudulent marriage.” Deft. Exh. 5 (p. 45). The CS reported that the subject was from Tunisia, and that the CS had known the subject for some time due to meeting him occasionally at an Arab grocery in Lackawanna. The CS subsequently identified the subject as Jamel Ben Abdallah—the plaintiff—and reported that further contact had revealed information regarding possible anti-American views expressed by one of plaintiff's fellow CBP trainees at FLETC, a man identified as Hamad Abdelqader. See Deft. Exh. 6 (pp. 51–55); see also Deft. Exhs. 8 & 9 (pp. 81, 83).

The investigation was assigned to Special Agent Richard Ford (“SA Ford”). On September 16, 2008, SA Ford and Immigration and Customs Enforcement (“ICE”) Special Agent Mark Reimann (“SA Reimann”) traveled to St. Petersburg, Florida, to interview Faycel Ben Hajmeftah, who was listed as a reference on plaintiff's CBP employment application. SA Ford's “Memorandum of Activity” regarding this interview indicates that Mr. Hajmeftah is also from Tunisia, and met plaintiff when they worked together at Salem's Gyro restaurant in St. Petersburg. SA Ford noted that a subsequent review of the Standard Form 86 employment questionnaire and Background Investigation Personal Interview Worksheet in plaintiff's personnel file revealed no reference to his employment at Salem's Gyro restaurant. See Deft. Exh. 10 (pp. 85–86).

On September 22, 2008, SA Ford and SA Reimann interviewed plaintiff at DHS offices in Buffalo. As reported in SA Ford's Memorandum of Activity regarding this interview, plaintiff was given a Beckwith/Garrity³ form, which he read and signed. Plaintiff admitted during the interview that, following his arrival in the United States, he worked at Salem's Gyro and another restaurant in St. Petersburg without reporting the income to tax authorities, and he omitted this information from his federal employment and backgroundinvestigation documents. Deft. Exh. 11 (pp. 88–89). Plaintiff acknowledged his association with Mr. Abdelqader while at FLETC, but denied any direct knowledge of his having expressed anti-American sentiment. Plaintiff also stated that he would voluntarily submit to a polygraph examination. See id.; see also Deft. Exh. 6 (pp. 70–71). Following the interview, plaintiff signed a sworn statement acknowledging that he knowingly failed to disclose his undocumented employment in St. Petersburg to CBP, both on his online employment questionnaire and during his pre-employment personal interview. See Deft. Exh. 12 (pp. 91–93).

On September 30, 2008, SA Ford and SA Reimann interviewed plaintiff's father-in-law, Malcolm Hulse, at Mr. Hulse's residence in Medina, New York. As reported in SA Ford's Memorandum of Activity regarding this interview, Mr. Hulse related the circumstances of his daughter's relationship with plaintiff, their wedding in Tunisia, and their relocation to the United States. Pltff. Exh. 2 (p. 20).⁴ According to SA Ford, “Hulse stated the [plaintiff] was originally of the Muslim faith but later converted to Catholicism while in the U.S.” Id.

On October 2, 2008, plaintiff voluntarily submitted to a polygraph test, which was conducted at the United States Secret Service (“USSS”) field office in Buffalo by USSS Special Agent Donald Witham (“SA Witham”). Plaintiff signed several forms, including a Beckwith/Garrity Advice of Rights (Deft. Exh. 14 (p. 5)); a notice of Miranda rights (Deft. Exh. 15 (p. 7)); and a “Polygraph Examination Statement of Consent” form indicating his voluntary “consent to be interviewed and submit to a Polygraph Examination in connection with an investigation concerning national security.” Deft. Exh. 16 (p. 9). SA Witham reported that “Series I was administered and evaluated as Deception Indicated to relevant question pertaining to terrorist activity.” Deft. Exh. 13 (p. 3). Upon being advised of the results of the initial series of questions, plaintiff “stated that he wished to terminate the examination to consult with an attorney.” Id.

Later on October 2, 2008, plaintiff reported to work and told his immediate supervisors, Kevin Sekuterski and Patricia Janicki, that he was being harassed by DHS investigators. See Deft. Exh. 18 (p. 14). Plaintiff was “granted leave to return home and collect his thoughts.” Id. Upon returning to work the next day, plaintiff was informed by his supervisors that they had discussed the matter with Chief CBP Officer John Madsen and were advised that CBP Internal Affairs was conducting an investigation into plaintiff's conduct. Officer Sekuterski instructed plaintiff to cooperate with the investigation, and placed plaintiff on restricted duty until further notice. Id.

On October 28, 2008, SA Ford and SA Reimann conducted a further interview of plaintiff at the CBP's Peace Bridge offices. See Deft. Exh. 20 (p. 28). Prior to the start of the interview, plaintiff was presented with an Advice of Rights ( Kalkines⁵) form, which he read aloud and signed at 10:45 a.m. See Deft. Exh. 21 (p. 30). Several minutes into the interview, plaintiff Advised SA Ford that he declined to participate any further, and hand wrote on the Advice of Rights form: “I don't wish to participate in this interview JB 11:05, 10/28.” Id.; see also Deft. Exh. 20 (p. 28).

SA Ford immediately notified Chief CBP Officer John Madsen (“Chief Madsen”), plaintiff's second line supervisor, about plaintiff's unwillingness to participate in the interview. See Deft. Exh. 22 (pp. 32–36). Chief Madsen entered the interview room and questioned plaintiff about whether he was aware of the consequences of his actions. Id. (p. 33). Plaintiff replied that he understood he could be disciplined, including removal from service. Id. Chief Madsen then informed CBP Port of Buffalo Director Joseph Wilson (“Port Director Wilson”) that plaintiff had decided not to participate in the interview. Id.

By letter dated November 3, 2008, Port Director Wilson advised plaintiff that his employment with CBP was being terminated because he “refused to cooperate in a [DHS] investigation conducted by the [OIG...