Ghaly v. U.S. Department of Agriculture, 00 CIV.7991(JGK).

• Citation: 228 F.Supp.2d 283
• Decision Date: 25 January 2002
• Docket Number: No. 00 CIV.7991(JGK).,00 CIV.7991(JGK).
• Parties: Ayman Nabil GHALY, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.
• Court: U.S. District Court — Southern District of New York

228 F.Supp.2d 283

Ayman Nabil GHALY, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.

No. 00 CIV.7991(JGK).

United States District Court, S.D. New York.

January 25, 2002.

Ayman Nabil Ghaly, Howard Beach, NT, Pro se.

Edward Chang, Asst. U.S. Attorney, United States Attorney, New York City, for Defendant.

ORDER

KOELTL, District Judge.

The plaintiff, Ayman Nabil Ghaly, is employed by the United States Department of Agriculture ("USDA"), in the Animal Plant Health Inspection Service, Plant Protection Quarantine ("PPQ") at John F. Kennedy International Airport ("JFK") as a Plant Protection Technician. In his Second Amended Complaint, the plaintiff, proceeding pro se, alleges that the defendant retaliated against him in violation of the Whistleblower Protection Act of 1989, 5 U.S.C. § 1213 et seq., and violated the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 7513, and the Due Process Clause of the United States Constitution, U.S. Const. amend. V, by charging him with falsifying a number of time and attendance reports and transferring him from active duty to paid administrative-leave status pending a resolution of the charges without providing him with procedural safeguards that were allegedly due to him. The primary relief that the plaintiff originally sought was reinstatement to active status pending a decision on the charges. However, the defendant has concluded its investigation and dropped the charges against the plaintiff, who is now back on active duty. The plaintiff now seeks compensatory damages for lost overtime pay, damages for emotional distress and pain and suffering, and punitive damages.

There are currently two motions pending before the Court. The defendant moves to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiff moves pursuant to Rule 20(a) of the Federal Rules of Civil Procedure to add three additional co-workers to the case on the ground that their cases involve similar circumstances.

I.

When considering a motion to dismiss, the Court "`must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.'" Gant v. Wallingford Bd. of Education, 69 F.3d 669, 673 (2d Cir.1995) (considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, the defendant's present motion should only be granted if it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998); see also Goldman, 754 F.2d at 1065. Where, as here, the plaintiff is proceeding pro se, the Court must also "read the [plaintiff's] pleadings ... liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (internal citation and quotations omitted).

In deciding the motion, the Court may consider documents referenced in the Second Amended Complaint and documents that are in the plaintiff's possession or that the plaintiff knew of and relied on in bringing suit. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991); Skeete v. IVF America, Inc., 972 F.Supp. 206, 208 (S.D.N.Y.1997). The Court may also consider "matters of which judicial notice may be taken." See Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir.1999) (quotation omitted); see also Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991).

II.

Unless otherwise indicated, the following facts are either undisputed, matters of public record, or set forth in the plaintiff's Second Amended Complaint and are accepted as true for the purposes of the defendant's motion to dismiss.

The plaintiff, Ayman Nabil Ghaly, is employed as a Plant Technician by the United States Department of Agriculture ("USDA"), the Animal Plant Health Inspection Service ("APHIS"), Plant Protection Quarantine ("PPQ") at John F. Kennedy International Airport ("JFK"). Until the events leading to the present action, his job has been to assist Plant Protection Quarantine officers in the inspection of passengers and passenger baggage at JFK.

On September 12, 2000, after conducting an internal investigation of the PPQ concerning allegations of overtime abuse, the defendant charged the plaintiff and eight of his co-employees with falsifying a number of time and attendance reports and provided them with notices of proposed removal. The defendant also transferred these nine employees from active to paid administrative-leave status pending a resolution of the charges.

On October 19, 2000, the plaintiff filed an initial complaint with this Court, alleging that the USDA brought the charges against him and transferred him to paid administrative-leave status (i) because of his color and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); and (ii) without providing him with sufficient notice, opportunity to be heard and other, related procedural safeguards. The plaintiff sought, among other things, a preliminary injunction directing the defendant to allow him to return to work.

On December 1, 2000, the Court denied the plaintiff's motion for a preliminary injunction. On May 31, 2001, the Court then dismissed the plaintiff's initial complaint in its entirety, without prejudice to repleading. The Court dismissed his Title VII claim because the plaintiff had abandoned it in his reply brief and had failed to exhaust his administrative remedies. The Court dismissed the plaintiff's procedural claims on the ground that the plaintiff had failed to identify any specific statutory provisions that the defendant had allegedly violated and had failed to amend his complaint specifically to include a due process claim as an independent cause of action. The Court also observed that to the extent that the plaintiff was relying on provisions from the CSRA for his procedural claims, the plaintiff had failed to exhaust his administrative remedies on these claims.

On May 14, 2001, the plaintiff filed an appeal with the Merit Systems Protection Board ("MSPB"), seeking to be returned to work pending a decision on the charges or an injunction directing the defendant to complete its investigation. At or around this time, the plaintiff filed a complaint with the United States Office of Special Counsel (the "OSC"), which raised substantially the same claims and sought substantially the same relief.

On June 18, 2001, while these other actions were pending, the plaintiff filed an amended complaint (the "Second Amended Complaint" or the "Complaint") with this Court based on the same set of factual allegations and claiming violations of Whistleblower Protection Act of 1989, 5 U.S.C. § 1213 et seq., the Civil Service Reform Act, 5 U.S.C. § 7513, and the Due Process Clause of the United States Constitution, U.S. Const. amend. V. The plaintiff sought primarily to be reinstated pending a resolution of the charges against him, though he also asked for whatever other relief the Court deemed appropriate. See Complaint at 5, 7. Three days later, the plaintiff moved to add three additional plaintiffs to the case, who had been been issued proposed notices of removal and had been placed on administrative leave as a result of the same internal investigation that had led to the charges against the plaintiff.

On June 26, 2001, the Chief Administrative Judge for the New York Field Office of the MSPB dismissed the plaintiff's MSPB appeal for lack of jurisdiction. See Ghaly v. Department of Agriculture, NY-0752-01-0237-I-1, slip op. (N.Y.M.S.P.B. June 26, 2001). The Administrative Judge explained that the plaintiff had failed to meet his burden of establishing by a preponderance of the evidence that his placement on administrative leave was a "suspension of more than 14 days," which was a necessary predicate to an appeal of the agency's action. See id. at 2-5.

On October 9, 2001, the OSC similarly dismissed the complaint that the plaintiff had brought before it. However, the OSC also notified the plaintiff that he had the right to appeal the decision insofar as it related to allegations of reprisals for whistleblowing. See Letter from Ellen M. Oskui, Complaints Examiner, OSC to Ayman N. Ghaly dated October 9, 2001. The letter of notification informed the plaintiff that he had 65 days from the date of the letter's issuance to file such an appeal. At oral argument before this Court, the plaintiff acknowledged that he has not filed any appeal of the OSC's decision.

The defendant subsequently completed its investigation into the charges against the plaintiff. By letter dated October 17, 2001, the defendant informed the plaintiff that the charges were being dropped, thus allowing him to return to active duty. See Letter from Jerry Fowler, Regional Director, USDA to Ayman N. Ghaly dated October 17, 2001, at 1. The letter nevertheless contained an official word of caution concerning the falsification of time reports. See id. at 2. The letter explained that "there is not the preponderance of evidence required to sustain the specifications, nor the Charge"; however, the letter also indicated that "there is considerable evidence in support of several instances of falsification" alleged in the proposed notice of removal. Id. at 1. The letter thus instructed the...