Al-Kaysey v. Engility Corp.

AHMAD AL-KAYSEY, Plaintiff, v. ENGILITY CORPORATION, GLOBAL LINGUIST SOLUTIONS,and JOHN McHUGH, Secretary of the Army, Defendants.

11-CV-6318 (RRM) (LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 23, 2016

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff Ahmad Al-Kaysey brings this action against defendants Engility Corporation¹ ("Engility"), Global Linguistic Solutions ("GLS"), and the Secretary of the Army ("Army"), asserting claims of discrimination, retaliation, and hostile work environment arising out of his employment as a linguist in Iraq. The Court presumes familiarity with the procedural history of this case, including this Court's two previous Orders addressing earlier motions to dismiss.²

In January 2014, the Army requested a second opportunity to move to dismiss, this time for lack of subject matter jurisdiction³ - a request in which Engility and GLS subsequently joined. (See 1/27/14 Army Ltr. (Doc. No. 73).) The Court granted defendants leave to file motions to dismiss and Al-Kaysey, now represented by counsel, sought leave to file a motion to amend his pro se complaint at a pre-motion conference. (3/13/14 Minute Entry (Doc. No. 84); Briefing Schedule (Doc. No. 87).) Those motions are now before the Court.⁴ (See Army's Mot. to Dismiss (Doc. No. 90-1); Pl.'s Opp'n to Army & Mot. to Am. (Doc. No. 93); Army's Mot. to Dismiss Reply (Doc. No. 92); GLS Opp'n to Mot. to Am. (Doc. No. 95); Engility Opp'n to Mot. to Am. (Doc. No. 96); Pl.'s Reply Mem. in Further Supp. of Mot. to Am. (Doc. No. 94); Engility Mot. to Dismiss (Doc. No. 100-1); GLS Mot. to Dismiss (Doc. No. 104); Pl.'s Opp'n to Engility & GLS Mot. to Dismiss (Doc. No. 101); Engility Mot. to Dismiss Reply (Doc. No. 102); GLS Mot. to Dismiss Reply (Doc. No. 108).)

For the reasons that follow, the defendants motion to dismiss is granted in part, and denied only insofar as denying the motion to dismiss directed to Al-Kaysey's hostile work environment claim. As that claim is the only remaining claim, Al-Kaysey's motion to amend is granted only insofar as it pleads a claim of hostile work environment, and his request to amend as to all other claims is denied as futile.

BACKGROUND⁵

Al-Kaysey is a naturalized United States citizen of Iraqi descent and a practicing Muslim. He was employed as a linguist by Engility from January 29, 2005 through August 2, 2010. During that time, Engility was contracted to provide linguistic services for the United States Army Special Forces. Al-Kaysey was stationed with the United States Army Special Forces at Camp Justice in Baghdad, Iraq, from April 2005 until July 2007, when he moved to Camp Tiffner, also in Baghdad. Al-Kaysey worked at Camp Justice with Operational Detachment Alpha ("ODA") 5223 and at Camp Tiffner with ODA 5224. In 2009, GLS took over Engility's contract with the Army and then subcontracted Engility.

In March 2010, Master Sergeant William Caskey and Staff Sergeant Daniel Clarke were also assigned to Camp Tiffner as members of the ODA 5224 Special Forces. Al-Kaysey claims that beginning in May 2010, Clarke and Caskey made repeated derogatory remarks to Al-Kaysey. In particular, Clarke called Al-Kaysey a "sand nigger," "camel jockey," "towel head," and "inferior" on multiple occasions, and Caskey said that he did not respect Al-Kaysey because Iraqis like him were "sand niggers," "monkeys," and "people with no pride." On another occasion, Caskey allegedly accused Al-Kaysey of having "low standards" because Al-Kaysey assisted an Iraqi national worker migrate to the United States.

Additionally, Al-Kaysey alleges that Clarke and Caskey made derogatory comments toward Muslims, Iraqis, and other non-Caucasians in Al-Kaysey's presence on multiple occasions. Clarke said he hated Iraqis and was afraid they would kill him or "rip[] [him] off,"and told Al-Kaysey that Islam was a "faith of violence" practiced by people who are "time bombs." Caskey told Al-Kaysey that Islam was a "waste of time" and a "religion of violence." Clarke and Caskey also called a Sudanese translator "nigger," "negro," and "colored," and referred to Iraqi officers as "monkeys," "towel heads," "sand niggers," and "camel jockeys."

Al-Kaysey claims that he voiced his opposition in response to some such comments. For example, when Clarke and Caskey complained to Al-Kaysey about a Shiite religious ceremony and used several of the same derogatory epithets already mentioned to refer to Iraqi civilians, Al-Kaysey objected, telling them to respect the civilians and be tolerant of their religious practices. And when Clarke and Caskey withheld pay, food, and water from Iraqi civilian employees, Al-Kaysey expressed sympathy for the Iraqis and objected to the conduct of Clarke and Caskey.

In early June 2010, Al-Kaysey received a call from an informant with whom he had previously worked at Camp Justice. This was the first contact between the two since Al-Kaysey was moved to Camp Tiffner. The informant had called to complain about compensation. Al-Kaysey asserts that he told the informant not to contact him again, and reported the call to his supervisors the same day, prompting Caskey to call a meeting. In that meeting, Caskey commended Al-Kaysey for properly reporting the incident and did not accuse him of any misconduct. Al-Kaysey then changed his phone number so the informant would be unable to contact him again, and claims to have had no further contact with the informant.

In mid-July 2010, Al-Kaysey submitted a vacation request to Jeff Payne, Engility's Site Administrator.⁶ Payne, who was in regular contact with Clarke and Caskey, denied Al-Kaysey's vacation request and encouraged him to take medical leave instead, which would require Al-Kaysey to be "cleared" before returning.⁷ Caskey and Sergeant Alex McCoy, a member of ODA 5224 in charge of linguists, were scheduled to meet with Payne on July 30, and Al-Kaysey asked to accompany them in order to speak to Payne about his vacation request. Caskey declined, and told Al-Kaysey that he and McCoy would "take care of it." When they returned, McCoy told Al-Kaysey that Engility had denied Al-Kaysey's request, and that he had to take medical leave if he wanted time off. On August 2, 2010, Al-Kaysey overheard Caskey asking whether Al-Kaysey agreed to take medical leave, and upon hearing that Al-Kaysey did not do so, said, "let's do it, [l]et's get rid of him." That day, Lieutenant Daniel O'Connor issued an email recommendation stating:

It is imperative that [Al-Kaysey] be terminated with prejudice at the earliest opportunity. This linguist should be considered a security risk and must not be re-hired, or allowed to retain a security clearance under any circumstances.

(Ex. L to Riley 11/16/15 Decl. ("Termination Recommendation & Approval") (Doc. No. 115-1) at 57.) O'Connor's email further explained:

After making initial contact with a suspected source target, linguist was told to cease and desist all further contact. The linguist disobeyed this order, and continued communication with the source. This was reported to the ODA by a secondary source, and confirmed when the ODA conducted a check on the initial source's cell phone; revealing between 500-600 calls within a 20 month period. It has also been suggested, but not verified, by the same third source that supplied the ODA with the information about the phone calls that the linguist may be interfacing with sources from other ODA's and/or sources who work with other U.S. Military units.

(Id.)

Shortly thereafter, Al-Kaysey was called into a meeting with Clarke, Caskey, and another officer.⁸ There, Clarke accused Al-Kaysey of continuing to speak to the informant, and he andCaskey terminated Al-Kaysey from his translation services assignment with the Army, allegedly saying they did not "expect much" from an "inferior" and a "sand nigger." Al-Kaysey was not provided details, evidence, or any opportunity to respond to the allegations of unauthorized contact, nor was he asked any questions about them. Al-Kaysey was then taken to the Baghdad airport where he claims he was held three days under constant surveillance. His requests to speak to representatives from GLS and Engility were denied, and GLS did not provide him with a plane ticket to return to the United States. Within a week, he was formally terminated by both Engility and GLS.⁹

In September 2010, Al-Kaysey learned that an incident report was filed in his Joint Personnel Adjudication System ("JPAS") account.¹⁰ The incident report consists of one paragraph stating that Al-Kaysey was terminated because he disobeyed orders by communicating with a source and that phone records revealed 500-600 calls between them within a twenty month period.¹¹ Despite repeated attempts, Al-Kaysey was unable to get anyone to investigate or modify the incident report. Though he maintains a security clearance, Al-Kaysey has been unable to obtain work as a Category III linguist.

STANDARDS OF REVIEW

I. 12(b)(1)

Rule 12(b)(1) provides for dismissal of claims or complaints where the district court lacks the statutory or constitutional power to adjudicate them. Fed. R. Civ. P. 12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff carries the burden to affirmatively establish the existence of subject-matter jurisdiction by a preponderance of the evidence. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010) (quoting Makarova, 201 F.3d at 113). In determining whether a court has subject matter jurisdiction, "the court may consider relevant documents that are extrinsic to the complaint." N.Y.S. Catholic Health Plan, 321 F.R.D. at 294 (citing Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002)). "After construing all ambiguities and drawing all inferences in a plaintiff's favor, a district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the...