Dean v. City of New Orleans

• Decision Date: 02 July 2012
• Docket Number: CIVIL ACTION NO. 11-2209
• Parties: DARRYL C. DEAN v. CITY OF NEW ORLEANS, erroneously sued as NEW ORLEANS POLICE DEPARTMENT
• Court: U.S. District Court — Eastern District of Louisiana

DARRYL C. DEAN v. CITY OF NEW ORLEANS, erroneously sued as NEW ORLEANS POLICE DEPARTMENT

CIVIL ACTION NO. 11-2209

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Dated: July 2, 2012

MAGISTRATE JUDGE

JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTION

Plaintiff, Darryl C. Dean, proceeding pro se and in forma pauperis, filed the instant complaint in the United States District Court for the Northern District of Texas against Karen G. Mills, the Director of the Small Business Administration, and the New Orleans Police Department, alleging numerous constitutional, federal statutory and state law violations. Record Doc. No. 1. To clarify Dean's claims against the New Orleans Police Department, the district court in Texas required him to respond to a Magistrate Judge's Questionnaire. After receiving plaintiff's answers to the questionnaire, Record Doc. No. 9, the court severed all claims against the New Orleans Police Department and transferred them to this court. Record Doc. No. 12.

This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 21.

Defendant, the City of New Orleans (erroneously sued as the New Orleans Police Department), moved to dismiss plaintiff's claims pursuant to Fed. R. Civ. P. 12(c). Record Doc. No. 27. Dean filed a timely opposition memorandum, in which he also seeks to have the City held in contempt for its alleged failure to comply with court-ordered deadlines. Record Doc. No. 29.

The City of New Orleans received leave to file a reply memorandum. Record Doc. Nos. 31, 32, 33. Plaintiff also received leave to file a reply memorandum. Record Doc. Nos. 34, 35, 36. Because plaintiff's pro se submissions must be construed broadly,¹ I have considered all of his written submissions in opposition to defendant's motion to dismiss.

Having considered the record, the complaint as amended by plaintiff's answers to the Magistrate Judge's Questionnaire, the submissions of the parties, and the applicable law, IT IS ORDERED that defendant's motion is GRANTED for the following reasons.

I. PLAINTIFF'S ALLEGATIONS AND BACKGROUND INFORMATION

In his federal court complaint against Karen G. Mills and the New Orleans Police Department (the "Police Department"), Dean brings claims based on "racial, sex, veteran's disability determination, giving false information, perjury, [and] violation ofPrivacy Act." Complaint, Record Doc. No. 1 at p. 1. He cites Title VII, 42 U.S.C. § 2000(e) et seq., and the Rehabilitation Act, 28 U.S.C. §§ 791, 794(c), as statutory bases for his complaint. Id. at p. 2.

Dean captions his complaint as a "Motion to Appeal" from a federal agency decision in the matter of "Darryl C. Dean v. Karen G. Mills, Administrator of the Small Business Administration, Agency, Appeal No. 0120091112, Agency No. 450-2008-00233X, Agency No. 11-08-010." This identifying information refers to Dean's administrative appeal from a decision of an Administrative Law Judge ("ALJ") in a matter before the Equal Employment Opportunity Commission, Office of Federal Operations ("EEOC"). Dean states that his federal court complaint is "a request for reconsideration due to clearly erroneous interpretation of material fact and law." Id. As "supporting documentation," id., he has attached a copy of the EEOC's decision on appeal, dated July 8, 2011. Id. at pp. 4-7.

The factual allegations of Dean's complaint, particularly regarding the actions of the Police Department, are nonspecific and unclear. However, his complaint incorporates the EEOC's decision on appeal. Because the facts reported in that decision clarify the vague allegations of Dean's complaint in this court, I first summarize the EEOC's decision.

According to the decision, the Small Business Administration (the "SBA") hired Dean as a temporary paralegal specialist in its Office of Disaster Assistance in Fort Worth, Texas on April 10, 2006. His temporary appointment "was extended numerous times." Id. at p. 6.

On December 17, 2007, Dean filed a complaint of race, sex, age and disability discrimination with the EEOC based on three events at the SBA: (1) He was notified on October 29, 2007 that his temporary appointment would expire on November 10, 2007. (2) He was placed on administrative leave on November 7 and 8, 2007 because of his misrepresentation or omission of facts in connection with his federal employment application, his failure to follow his supervisor's instructions and because "he raised safety concerns regarding his presence" at his work location "due to being falsely accused of carrying a firearm." (3) On November 7, 2007, security personnel at his workplace gave Dean a criminal trespass warning. Id. at p. 5.

The ALJ determined the following facts. On October 1, 2007, Dean's supervisor at the SBA observed him wearing an empty gun holster in the office. The incident prompted an investigation by the SBA and then by the Office of Inspector General. During the investigation, the Inspector General advised the SBA that Dean had been terminated from his employment with the Police Department effective June 17, 2003. Dean had not disclosed that termination on his federal employment application in 2006.Plaintiff then admitted that he had been terminated by the Police Department in 2003, but said he had been reinstated upon appeal. Because he had made false statements on his employment application, the SBA advised Dean that it would not extend his temporary appointment beyond its November 10, 2007 expiration date. Id. at p. 6.

The SBA told the EEOC that it had placed Dean on administrative leave on November 7 and 8, 2007, because he had created a disturbance regarding the gun holster incident and because of safety concerns. The SBA reported that, after Dean was notified that his appointment would not be renewed, he "wandered off from his assigned work area without saying where he was going; took an excessive number of cell phone calls during work hours; was not being diligent with his duties; and made complaints about his coworker who he claimed had said she would bring a gun to work and shoot him." Id.

The Federal Protective Service issued a criminal trespass warning to Dean on November 7, 2007. Plaintiff's supervisor told the security officer that "she and other management officials were concerned for their safety because of [Dean's] behavior with the gun holster, his other behavior issues, and because he was going to be laid off within the next couple of days. [The supervisor also reported that] several employees [were] concerned about how [Dean] was going to react toward the layoff." Id.

The ALJ found that the SBA had proffered legitimate nondiscriminatory reasons for its actions and that no race, sex or age discrimination had occurred. The EEOC did not decide whether Dean was a qualified individual with a disability because he had not claimed that he was denied a reasonable accommodation. The ALJ's decision was affirmed on appeal because it was supported by substantial evidence. Id. at p. 7.

The EEOC's notice of denial of Dean's appeal, dated July 8, 2011, advised him that he had 90 days from his receipt of the decision to file a civil action, in which he must name the head of the SBA as defendant. He filed the instant complaint against Mills and the Police Department in the Northern District of Texas on July 15, 2011.

This factual background assists the court in understanding the allegations of Dean's vague complaint. He states that the

empty gun holster issue was found not charges [sic]. This issue was used by the white females involved to contact the New Orleans Police Department and receive erroneous information and information that was illegal to be released. I explained to the parties involved that I was mobilized on active duty and could not be terminated while serving my country and a copy of my orders were submitted to the New Orleans Police Department. This is clear discrimination of race due to the parties being white, sex due to the parties being female, and clear federal violation of due process, privacy and illegal reporting of status.

The SBA was aware that I was military as I receive military preference points and additional vacation days. They were informed of my surgery at the VA hospital and the disability requirements submitted from the VA doctors for future working accommodations. One of the accommodations was that I be allowed to move around every 20 to 30 minutes, which is why I was allowed to be away from my desk during this time frame for medical reasons. The fact is this does qualify asdiscrimination due to known reasonable medical disability accommodation requirements that were agreed to be accommodated.

There were SBA members that lied, perjured themselves and giving conflicting statements under oath and I was not allowed to have my witnesses that were present during every issue, Mr. Gary Minor, Mr. Ozel, and my immediate supervisor, Mr. Allen.

Id. at p. 2.

After Dean filed this lawsuit, the Magistrate Judge in Texas ordered him to answer a questionnaire to clarify his allegations against the Police Department.² Plaintiff responded to the questionnaire by stating that the allegations against him at the SBA were instigated by a white, female employee and that, during the investigation by the SBA and the Inspector General, two other white, female employees of the SBA "went into my records [and] notified the New Orleans Police Department." Dean alleges that the Police Department "at that time violated" the Privacy Act, the Health Insurance Portability and Accountability Act ("HIPAA") and the Americans with Disabilities Act and "pe[r]jured themselves by fals[e]ly giving information to a federal agency." He states that the "false information given was used to federally defame my character,discontinue my employment and violated my rights under" 10 U.S.C. § 12304 "of the military called to active...