Fpl Food, LLC v. U.S. Dept. of Agriculture, No. CV 107-154.

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Writing for the CourtLisa Godbey Wood
Citation671 F.Supp.2d 1339
PartiesFPL FOOD, LLC, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Chuck Conner, Acting Secretary, United States Department of Agriculture, and Gary Casella, in his official and individual capacity, Defendants.
Decision Date12 November 2009
Docket NumberNo. CV 107-154.
671 F.Supp.2d 1339
FPL FOOD, LLC, Plaintiff,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, Chuck Conner, Acting Secretary, United States Department of Agriculture, and Gary Casella, in his official and individual capacity, Defendants.
No. CV 107-154.
United States District Court, S.D. Georgia, Augusta Division.
November 12, 2009.

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Brett Lane, Leslie K. Eason, Mark G. Trigg, Amanda S. Thompson, David W. Long-Daniels, Greenberg Traurig, LLP, Atlanta, GA, for Plaintiff.

Melissa Stebbins Mundell, U.S. Attorney's Office, Savannah, GA, Kenneth D. Crowder, U.S. Attorney's Office, Augusta, GA, for Defendants.

ORDER

LISA GODBEY WOOD, District Judge.


Presently before the Court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. (Dkt. # 46.) According to the allegations of FPL's Second Amended Complaint, a United States Department of Agriculture ("USDA") inspector assigned to ensure regulatory compliance at a beef processing plant sexually harassed and retaliated against the employees of that plant. The harassment and retaliation allegedly continued from 2004 to 2007. In November 2007, the processing plant, FPL Food, LLC, filed this action. FPL's Second Amended Complaint asserts claims against the USDA, USDA Acting Secretary Chuck Conner in his official capacity, and the inspector, Gary Casella, in his official and individual capacities. All Defendants have moved to dismiss the Complaint in its entirety.

The Complaint asserts seven counts: (1) review of agency action under the Administrative Procedures Act; (2) declaratory relief under the Declaratory Judgment Act; (3) a Bivens claim predicated upon Casella's alleged violation of FPL's employees' First Amendment rights; (4) a Bivens claim predicated upon Casella's alleged violation of FPL's employees' Fifth Amendment rights; (5) injunctive relief pursuant to a state-law trespass claim; (6) money damages pursuant to a state-law interference with contract claim; and (7) fees and costs. In its general prayer for relief, FPL asks for damages, fees, and an injunction prohibiting Casella's return to FPL. The Court GRANTS Defendant's Motion to Dismiss as to Counts Two, Three, and Four, and DENIES it as to Counts One, Five, Six, and Seven. The Stay of Proceedings pending consideration of Defendants' Motion for Reconsideration of the Court's prior order is hereby LIFTED. The prior order, issued February 4,

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2009, is hereby withdrawn and replaced in its entirety with this Order.

FACTUAL ALLEGATIONS

The following factual allegations are taken from FPL's Complaint and attached documents. FPL's allegations begin with the contention that USDA inspector Gary Casella sexually harassed Maureen Mata, a female employee of FPL. Ms. Mata states that in the fall of 2004, Casella began commenting on her looks. According to Ms. Mata, Casella would routinely tell her that she was "pretty," that he liked the way she looked, and that she looked good in a specific pair of pants. (2d Am. Compl. ¶ 7(a).) Ms. Mata further avers that, although she asked Casella to stop making such comments, he continued to make them through May 2007. (Mata Decl. ¶ 4; 2d Am. Compl. ¶ 7.)1 She recalls that Casella "would also brush up against me, touch me, and invade my personal space." (Mata Decl. at ¶ 6.)

In addition to these remarks, Ms. Mata describes several encounters with Mr. Casella. Ms. Mata recounts that, in the fall of 2004, Casella asked to meet with her because "his wife was going out of town." (Id. at ¶ 5.) She further claims that in early 2005, Mr. Casella walked by her with an inspection hook and made a masturbation gesture with his hand on the pole of the hook. (Id. at ¶ 7.) Next, during the summer of 2005, Mr. Casella allegedly told Ms. Mata, "I wish I could put my head between your legs." (Id. at ¶ 8.)

FPL further alleges that in late 2005, Mr. Casella walked by Ms. Mata and brushed his hand against her buttocks. Another FPL employee, Sophia Blockett, avers that she saw the incident and asked Ms. Mata why she did not report Casella's misconduct. According to Ms. Blockett, Ms. Mata replied that she did not want anyone to lose their job. Specifically, Ms. Mata stated that Mr. Casella previously told her that he had the power to shut down the plant. (See Mata Decl. ¶ 9; Blockett Decl. ¶ 7.) Ms. Mata and Ms. Blockett also report that Mr. Casella would visit Ms. Mata's work station at least two to three times per day and stare at her for ten to fifteen minutes at a time. (Mata Decl. ¶ 12; Blockett Decl. ¶¶ 8-9.) Ms. Mata also relates that, on several occasions, Mr. Casella made sexual gestures toward her with his tongue. (Mata Decl. ¶ 13.)

Ms. Mata and another FPL employee, Angel Aviles, recount an occasion in the summer of 2006 when Mr. Casella walked up behind Ms. Mata, put his hand in her lab coat pocket, and rubbed his hand against her leg. Mr. Aviles, who has since married Ms. Mata, witnessed the incident and recalls confronting Mr. Casella. Mr. Casella reportedly told Mr. Aviles he was putting ice in Ms. Mata's pocket to "cool her down." Mr. Aviles told Mr. Casella to "back off" and never touch her again. According to Mr. Aviles, Mr. Casella replied, "You can't threaten me. I'm the USDA." (See Mata Decl. ¶ 11; Aviles Decl. ¶¶ 4-5.)

FPL also alleges that Mr. Casella retaliated against Mr. Aviles. (2d Am. Compl. ¶ 9.) FPL alleges that shortly after Mr. Casella's confrontation with Mr. Aviles, Mr. Casella began to focus inordinately on inspecting Mr. Aviles's work. According to FPL, Mr. Aviles's work came under such intense scrutiny by Mr. Casella that FPL had to move Mr. Aviles to another workstation. Mr. Casella's inspection of Mr. Aviles's former workstation reportedly

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dropped off immediately after the move. (Aviles Decl. ¶¶ 7-8.)

After Mr. Aviles was transferred, Mr. Casella allegedly intensified his scrutiny of Mr. Aviles's new post. Specifically, FPL alleges that Mr. Casella declared a product to be contaminated even though three other experienced individuals, including one USDA inspector, found the product contaminant-free. As a result, FPL claims, management was again forced to rotate Mr. Aviles among assignments so that he did not stay in any single area long enough for Mr. Casella to focus all his retaliatory efforts on any one station. Mr. Aviles reported that he was afraid Mr. Casella's conduct would lead to his termination. (2d Am. Compl. ¶ 13, Aviles Decl. ¶¶ 8-10.)

FPL alleges that, by intimidating employees and necessitating the internal reshuffling of FPL's work force, Mr. Casella's misconduct diminished plant productivity and caused FPL economic loss. (2d Am. Compl. ¶¶ 43, 54.)

FPL also alleges that Mr. Casella acted in a racially discriminatory manner, contaminated items as he inspected them, and otherwise distracted FPL employees by discussing sexual matters. (2d Am. Compl. ¶¶ 8, 10, 11.)

ADMINISTRATIVE BACKGROUND

Congress enacted the Federal Meat Inspection Act ("the Act") in 1907 in response to unsanitary conditions in the meat-packing industry. The purpose of the Act is to assure that meat and meat food products are "wholesome, not adulterated, and properly marked, labeled, and packaged." 21 U.S.C. § 602. The Act directs the USDA to inspect the sanitary conditions of meat processing plants and to "prescribe the rules and regulations of sanitation under which such establishments shall be maintained." 21 U.S.C. § 608. The Act grants the USDA the authority to "make such rules and regulations as are necessary for the efficient execution" of the Act. 21 U.S.C. § 621. The USDA has delegated its inspection and enforcement authority under the Act to the Federal Safety and Inspection Service (FSIS). The FSIS sends inspectors to FPL, and FPL is legally obligated to allow them access to the plant. 9 C.F.R. § 300.6.

As part of the inspection process, the FSIS inspectors issue "noncompliance records" when they identify deviations from a plant's regulatory obligations. Mr. Casella's job involves issuing such noncompliance records. Industry members seeking to appeal those noncompliance records pursuant to 9 C.F.R. § 306.5 should appeal directly up the USDA's chain of authority by appealing each regulatory decision to the decision maker's immediate supervisor. In accordance with this process, an industry member contesting an inspector's noncompliance record would appeal first to the in-plant Inspector in Charge, then to the Frontline Supervisor, then to the District Manager, and then to the Executive Associate for Regulatory Operations (EARO) in Washington.

In addition to the regulations published in the Code of Federal Regulations, the FSIS issues official communications and instructions to its staff in the form of guidance documents known as "Directives." Directives are instructions written to FSIS employees to implement the USDA's policies and procedures. One such directive, FSIS Directive 4735.7, allows a member of the meat-processing industry, like FPL, to file an administrative complaint against an USDA employee. The Directive prescribes a simple administrative appeal process for members of the regulated industry who are dissatisfied with the USDA's resolution of their complaints about USDA personnel.

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FPL filed a complaint against Mr. Casella under FSIS Directive 4735.7. The USDA determined that it would return Casella to FPL based in part on the erroneous belief, relayed to FPL orally, that Ms. Mata no longer worked for FPL. (2d Am. Compl. ¶ 14.) FPL appealed that decision. (2d Am. Compl. at ¶ 15.) The end result of FPL's administrative complaint and appeal was a letter from the USDA stating that the USDA "f[ound] that the allegations of misconduct against Mr. Casella have not been substantiated." (2d. Am. Compl. Ex. 16). The letter concluded that "[a]lthough FSIS does not currently plan on assigning [Casella] to FPL, please be...

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4 practice notes
  • Kearney Partners Fund, LLC v. United States, Case No. 2:10–cv–153–FtM–SPC.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 22, 2013
    ...pronouncements. See, e.g., id. at 709;Ngure v. Ashcroft, 367 F.3d 975, 982–83 (8th Cir.2004); FPL Food, LLC v. U.S. Dep't of Agric., 671 F.Supp.2d 1339, 1353 (S.D.Ga.2009) (noting that the D.C. Circuit and at least three other circuits have held that “agency pronouncements are only binding ......
  • Rescue v. Vilsack, No. 1:13-CV-00639-MCA-RHS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 1, 2013
    ...are instructions written to FSIS employees to implement the USDA's policies and procedures." FPL Food, LLC v. U. S. Dept. of Agric., 671 F.Supp. 2d 1339, 1344 (S.D. Ga. 2009). In this case, the FSIS's Directive contains information regarding the specific conditions that must be satisfied be......
  • Curry v. Koch Foods, Inc., Case No.: 2:16-cv-02008-SGC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • March 20, 2019
    ...(Id. at 59). This testimony is consistent with the plain language of the Directive. Curry cites FPL Food, LLC v. U.S. Dep't of Agric., 671 F. Supp. 2d 1339 (S.D. Ga. 2009), to support her claim Koch Foods could have exhausted its administrative remedies under the Directive or sought an inju......
  • Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 22, 2013
    ...pronouncements. See, e.g., id. at 709; Ngure v. Ashcroft, 367 F.3d 975, 982-83 (8th Cir. 2004); FPL Food, LLC v. U.S. Dep't of Agric., 671 F. Supp. 2d 1339, 1353 (S.D. Ga. 2009) (noting that the D.C. Circuit and at least three other circuits have held that "agency pronouncements are only bi......
4 cases
  • Kearney Partners Fund, LLC v. United States, Case No. 2:10–cv–153–FtM–SPC.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 22, 2013
    ...pronouncements. See, e.g., id. at 709;Ngure v. Ashcroft, 367 F.3d 975, 982–83 (8th Cir.2004); FPL Food, LLC v. U.S. Dep't of Agric., 671 F.Supp.2d 1339, 1353 (S.D.Ga.2009) (noting that the D.C. Circuit and at least three other circuits have held that “agency pronouncements are only binding ......
  • Rescue v. Vilsack, No. 1:13-CV-00639-MCA-RHS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 1, 2013
    ...are instructions written to FSIS employees to implement the USDA's policies and procedures." FPL Food, LLC v. U. S. Dept. of Agric., 671 F.Supp. 2d 1339, 1344 (S.D. Ga. 2009). In this case, the FSIS's Directive contains information regarding the specific conditions that must be satisfied be......
  • Curry v. Koch Foods, Inc., Case No.: 2:16-cv-02008-SGC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • March 20, 2019
    ...(Id. at 59). This testimony is consistent with the plain language of the Directive. Curry cites FPL Food, LLC v. U.S. Dep't of Agric., 671 F. Supp. 2d 1339 (S.D. Ga. 2009), to support her claim Koch Foods could have exhausted its administrative remedies under the Directive or sought an inju......
  • Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 22, 2013
    ...pronouncements. See, e.g., id. at 709; Ngure v. Ashcroft, 367 F.3d 975, 982-83 (8th Cir. 2004); FPL Food, LLC v. U.S. Dep't of Agric., 671 F. Supp. 2d 1339, 1353 (S.D. Ga. 2009) (noting that the D.C. Circuit and at least three other circuits have held that "agency pronouncements are only bi......

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