IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
May 1, 2009
SHAWN B. MCCULLERS
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY
The opinion of the court was delivered by: McLaughlin, J.
In October 2007, the plaintiff filed a complaint stating that the Federal Air Marshal Service terminated him because of his race in violation of Title VII, 42 U.S.C. § 2000e et seq. (Count I), and 42 U.S.C. § 1981 (Count II). The Court dismissed Count II of the complaint by Order dated March 6, 2008. See Docket No. 22. On January 26, 2009, the plaintiff filed a request for leave to amend his complaint to reassert Count II and to add two additional claims: a claim of disability discrimination under the Rehabilitation Act and the Americans with Disabilities Act ("ADA"); and a constitutional claim for violation of the due process clauses of the Fifth and Fourteenth Amendments. For the reasons herein stated, the plaintiff's motion is denied.
As the Court explained in its Order of March 6, 2008, 42 U.S.C. § 1981 does not apply to persons acting under color of federal law. Rather, Title VII is the exclusive remedy for federal employees alleging race discrimination in the workplace.
See Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir. 1997); see also Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005) (holding that § 1981 does not apply to actions taken by federal officials). Although the plaintiff argues that § 1981 applies because he is no longer a federal employee, for the purposes of this action, it matters only that the alleged actions were taken by the defendant pursuant to his authority given by federal, not state, law. Section 1981 does not apply to such actions. The plaintiff's motion to reconsider dismissal of Count II is therefore denied.
The plaintiff's motion for leave to amend is also denied. Generally, leave to amend a complaint is to be "freely given when justice so requires." Fed. R. Civ. P. 15(a). A request to amend may be denied, however, when the moving party has demonstrated undue delay, bad faith, or dilatory motives; when the amendment would prejudice the other party; or when the amendment would be futile. Hill v. City of Scranton, 411 F.3d 118, 134 (3d Cir. 2005). Futility means that the amended complaint would fail to state a claim upon which relief could be granted. Thus, futility is governed by the same standard of legal sufficiency as a Rule 12(b)(6) motion to dismiss. In re Alpharma Inc. Sec. Litig., 372 F.3d 137, 153-54 (3d Cir. 2004).
Amendment to add the plaintiff's Rehabilitation Act/ADA claim is unduly dilatory. Although the plaintiff alleges that he has discovered "new information that supports his claim," the allegations stated in his proposed amended complaint to support his disability discrimination claim are virtually identical to those stated in support of his Title VII claim in his original complaint filed in October 2007. Compare Compl. ¶ 64 (Docket No. 1) with Prop. Am. Compl. ¶ 68, attached to Pl.'s Mot. (Docket No. 40). The plaintiff was not unaware of the possibility of filing a disability discrimination claim - he filed such a claim with the EEO in 2005. The plaintiff offers no explanation for his failure to assert this claim in his original federal complaint, or for his assertion of such a claim at this stage.*fn1
Allowing the plaintiff leave to add his disability discrimination claim would also be prejudicial to the defendant. Granting the plaintiff's motion would either force the defendant to proceed without discovery related to the plaintiff's alleged disability, or it would force the Court to reopen discovery so that the defendant could serve further discovery requests and interrogatories on the plaintiff and/or retake the plaintiff's deposition. Because the plaintiff could have stated this claim in his original federal complaint or amended his complaint earlier to state such a claim, forcing the defendant to engage in additional discovery at this stage would be prejudicial.*fn2
Amendment to add the plaintiff's proposed constitutional claim, on the other hand, is futile. Title VII and the Rehabilitation Act are the exclusive avenues for redressing claims of race and disability discrimination in federal employment. Robinson, 107 F.3d at 1020-21; Spence v. Straw, 54 F.3d 196, 202-03 (3d Cir. 1995). To the extent that the plaintiff seeks a separate non-statutory remedy for a denial of constitutional due process arising out of the defendant's decisions (1) to deny him participation in "various agency-wide programs," (2) to fail to give him a "formal offer" for a specific light duty position or to return him to light duty status, and (3) to discharge him, the Court cannot grant such a remedy. See Prop. Am. Compl. ¶¶ 53, 70(f)-(g).
Although federal courts have exercised jurisdiction to hear non-statutory constitutional claims under certain circumstances, they will not do so when a statutory scheme provides adequate relief. See Schweiker v. Chilicky, 487 U.S. 412, 420-23 (1988); Bush v. Lucas, 462 U.S. 367, 388-89 (1983). The United States Court of Appeals for the Third Circuit has stated that the Civil Service Reform Act of 1978 ("CSRA") provides "the full scheme of remedies available" for "constitutional violations arising out of the employment relationship," and that the CSRA thus prevents federal employees from bringing constitutional claims for "job-related wrongs." Sarullo v. U.S. Postal Service, 352 F.3d 789, 795-96 & n.5 (3d Cir. 2003) (citing Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995)).*fn3
Because the plaintiff's non-statutory constitutional claim arises out of the employment relationship and pertains to job-related wrongs, the Court cannot grant the plaintiff the non-statutory remedy he seeks. Amendment to add the plaintiff's proposed constitutional claim is therefore futile.
An appropriate Order shall issue separately.