Coe v. N.L.R.B.

• Decision Date: 31 March 1999
• Docket Number: No. 98-C-295.,98-C-295.
• Citation: 40 F.Supp.2d 1049
• Parties: Rocky L. COE, Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, Fred Feinstein, Michael M. Balsamo, Richard A. Siegel, Philip E. Bloedorn, Stephen J. Sweet, Dennis M. Selby, Federal Plaza Associates, a Wisconsin Limited Partnership, Merchants Police, John Doe and Richard Roe, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

40 F.Supp.2d 1049

Rocky L. COE, Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, Fred Feinstein, Michael M. Balsamo, Richard A. Siegel, Philip E. Bloedorn, Stephen J. Sweet, Dennis M. Selby, Federal Plaza Associates, a Wisconsin Limited Partnership, Merchants Police, John Doe and Richard Roe, Defendants.

No. 98-C-295.

United States District Court, E.D. Wisconsin.

March 31, 1999.

Robert E. Sutton, Milwaukee, WI, for Rocky L. Coe.

Charles A. Guadagnino, Assistant U.S. Attorney, Milwaukee, WI, and Jennifer S. Kovachich, National Labor Relations Board, Washington, D.C., for National Labor Relations Board, Fred Feinstein, Michael Balsamo, Richard Siegel, Philip Bloedorn, Stephen Sweet, Dennis Selby.

Mark D. Gundrum, Robert P. Ochowicz, Kasdorf Lewis & Swietlik, Milwaukee, WI, for Federal Plaza Associates.

James S. Smith, Matthew S. MacLean, Borgelt Powell Peterson & Frauen, Milwaukee, WI, for Merchants Police.

DECISION AND ORDER

CURRAN, District Judge.

In this case, Rocky L. Coe, a former Field Attorney for the National Labor Relations Board [NLRB], is suing his former employer as well as six NLRB officials [collectively called the "Federal Defendants"]¹ and four private parties² for wrongs he alleges to have suffered in connection with his employment. The Federal Defendants have not answered, but have moved for summary judgment asking the court to dismiss most of the Plaintiff's claims on a number of procedural grounds. See Federal Rule of Civil Procedure 56.

I. FACTS

Rocky Coe was a Field Attorney in Region 30 of the NLRB. He was stationed in Milwaukee, Wisconsin where he worked at the Henry S. Reuss Federal Plaza Building. Beginning in 1991, Coe claims that the six NLRB officials named as Defendants engaged in a course of conduct intended to force him to resign because he is an African American. In that same year Coe began to protest what he perceived to be race discrimination at the NLRB by sending letters and e-mail (via the NLRB system) to coworkers and public officials. In 1997, Defendant Balsamo issued a memorandum to Coe warning him to cease using the office e-mail in this manner, but Coe continued to use the e-mail to disseminate his concerns about race discrimination.

On March 27, 1997, Coe filed a formal complaint of race discrimination with the NLRB's Equal Employment Opportunity office. More than 180 days passed after his complaint was filed, but no final action was taken by the EEO.

On January 7, 1998, Coe was arrested for disorderly conduct based on a complaint made by Merchant's Police security guards. The guards alleged that he had made threats against them and against NLRB employees on two occasions while he was in the lobby of the Reuss Federal Plaza. Coe believes that these security guards conspired with Defendants Feinstein, Balsamo and Bloedorn to fabricate these charges and have him falsely arrested.

By a letter dated January 7, 1998, Defendant Bloedorn informed Coe that, due to the circumstances surrounding his arrest, he would be placed on administrative leave beginning on January 12, 1998. Meanwhile, the Plaintiff proceeded to apply for other NLRB positions which ultimately went to non-African Americans. Then, on February 11, 1998, the NLRB issued a Notice of Proposed Removal which Coe contested; but, on March 10, 1998, the NLRB issued him a Notice of Termination which became effective on April 3, 1998. Without waiting for that date, the Plaintiff filed this lawsuit on April 1, 1998. On April 21, 1998, he filed a mixed appeal³ of his EEO and civil service claims with the Merit Service Protection Board.

II. ALLEGATIONS OF THE COMPLAINT

In his Complaint, Coe claims:

I. that the federal officials violated his First Amendment right to free speech and his rights to equal protection and due process under the Fifth and Fourteenth Amendments and that they "acted in violation of 42 U.S.C. § 1983." Complaint at ¶ 30;

II. that all the Defendants discriminated against him in the terms and conditions of his employment and conspired to deprive him of property and liberty in violation of 42 U.S.C. §§ 1981 & 1985 and 42 U.S.C. §§ 2000c-5 & 2000e-16;

III. that all the Defendants (except the NLRB) willfully and maliciously conspired to injure Coe's reputation and profession in violation of section 134.01 of the Wisconsin Statutes:⁴

IV. that all the Defendants are liable to him for malicious prosecution.

Coe is seeking Ten Million Dollars in compensatory damages and Ten Million Dollars in punitive damages, plus costs and attorney fees. The Federal Defendants, however, believe that they are entitled to summary judgment on the grounds that: service of process was improper and insufficient; that Coe failed to exhaust his administrative remedies; that Title VII is his exclusive remedy for employment related claims; that the Plaintiff is not entitled to punitive damages; that Coe has failed to state claims upon which relief can be granted; and that the individual Defendants are entitled to qualified immunity.

III. LEGAL STANDARDS FOR SUMMARY JUDGMENT

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Federal Rule of Civil Procedure 56(c). See also Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

IV. DISCUSSION AND DECISION

A. THRESHOLD MATTERS

A number of developments which have a bearing on the grounds raised in the Federal Defendants' motion have taken place since they filed their motion for summary judgment. They had contested the sufficiency and manner of service, but their attorney later learned that proper service had been effected. See Letter from Assistant United States Attorney Charles Guadagnino to the Honorable Thomas J. Curran (received October 5, 1998). The Defendants had also provisionally requested that Coe's Title VII claims be dismissed for lack of exhaustion if the administrative law judge found that she had jurisdiction to hear the appeal Coe filed before the Merit Systems Protection Board after he had filed this lawsuit. The administrative law judge did not rule on jurisdiction; but, on June 18, 1998, dismissed the appeal without prejudice at the request of the Plaintiff. See Affidavit of Robert E. Sutton at ¶ 6, Exhibit 5. Based upon this sequence of events, the court concludes that Coe has now exhausted his administrative remedies and is entitled to maintain his action in this court.⁵ See 5 U.S.C. § 7702(e)(1). In addition to these developments, Assistant United States Attorney Guadagnino recently informed the court that the disorderly conduct charge against Coe was dismissed in Milwaukee County Circuit Court on March 12, 1999. See Letter from Assistant United States Attorney Charles Guadagnino to the Honorable Thomas J. Curran (received March 12, 1999).

B. EXCLUSIVE REMEDY

The main issue remaining to be resolved is whether Coe can maintain his Bivens⁶ claims under the First, Fifth and Fourteenth Amendments, his claims for relief under 42 U.S.C. §§ 1981, 1983 & 1985, and his state law claims for violation of section 134.01 of the Wisconsin Statutes and malicious prosecution in addition to his Title VII claims. Having reviewed the parties' arguments and the law governing this issue, the court concludes that the answer is "No," because Title VII provides the exclusive remedy for Coe's claims.

The United States Supreme Court has ruled that Bivens actions are not available in two situations:

The first is when defendants demonstrate "special factors counseling hesitation in the absence of affirmative action by Congress." The second is when defendants show that Congress has provided an alternative remedy which is explicitly declared to be a substitute for recovery directly under the Constitution and viewed to be equally effective, a Bivens action will be precluded.

Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (citations omitted). Having recognized these exceptions to Bivens, the Court has decided that it should not provide constitutional remedies to supplement a congressionally-established administrative system even where that system's remedies are not as complete as the constitutional remedy might be. See Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Employees of the executive branch of the federal government can seek relief under two comprehensive statutory remedial schemes: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17, which covers claims of employment discrimination and the Civil Service Reform Act of 1978, 5 U.S.C. §§ 2301 et seq., which covers nondiscriminatory employment claims. Thus, in Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Court held that 42 U.S.C. § 2000e-16, as amended, which makes Title VII applicable to employees of the executive branch of the federal government, "provides the exclusive judicial remedy for claims of discrimination in federal employment." Id. at 835, 96 S.Ct. 1961. The Court reasoned that the amended statute's "careful blend of administrative and judicial enforcement powers" shows Congress' intent that the statute provide the exclusive means of granting relief for federal employees against the government. See Id. at 832-33, 96 S.Ct. 1961....