Plesha v. Wolf

MIODRAG PLESHA, Plaintiff, v. CHAD F. WOLF, SEC'Y OF U.S. DEP'T OF HOMELAND SEC, Defendant.

CIVIL NO. 20-1012 (GAG)

UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO

April 30, 2021

OPINION AND ORDER

Miodrag Plesha ("Mr. Plesha" or "Plaintiff") filed the above-captioned complaint against Chad F. Wolf, former¹ Secretary of the U.S. Department of Homeland Security ("DHS" or "Defendant"), alleging discrimination based on his national origin, gender, and age as well as retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1963, 29 U.S.C. § 621 et seq. ("ADEA"), and the Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002, 5 U.S.C. § 2301 et seq. ("No FEAR Act"). (Docket No. 1). Plaintiff seeks compensatory damages and reinstatement into the Joint Terrorism Task Force, among other remedies. Id.

Presently before the Court is DHS' motion to dismiss the instant complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to FED. R. CIV. P. 12(b)(1), (6). (Docket No. 20). Plaintiff opposed. (Docket No. 28). For the ensuing reasons, the Court DENIES DHS's motion to dismiss at Docket No. 20.

I. Relevant Factual and Procedural Background

Mr. Plesha, a 51-year old male, who is of Croatian nationality, began working for DHS's Immigration and Customs Enforcement ("ICE") agency in January 2009 as a deportation officer assigned to ICE's Enforcement and Removal Operations ("ERO"). (Docket No. 1 ¶¶ 5, 9-10).

Around mid-September 2018, Mr. Plesha applied to the position of "temporary long-term detail" with the Federal Bureau of Investigations ("FBI")'s Joint Terrorism Task Force ("JTTF") whereby Mr. Plesha would serve a 4-year term as ICE's liaison. Id. ¶¶ 12-13. Mr. Plesha interviewed for the position with Homeland Security Investigations ("HSI") Group Supervisor ("HSI GS") Shea Warner ("Warner") who informed him that if he were to be selected, he would be under her immediate supervision and would also be required to work for HSI's Human Smuggling Group ("HSI HSG") in addition to the JTTF detail. Id. ¶ 14. In November of that same year, Mr. Plesha received an email informing him that he had been selected for the position by Jim Martin—Acting Field Office Director for the JTTF in San Juan, P.R. Id. ¶¶ 12-15.

On November 14, 2018, Mr. Plesha requested the office space that had been assigned to previous ICE liaisons with the JTTF and Assistant Field Office Director ("AFOD") Carmen Figueroa ("Figueroa") agreed to provide the office as soon as it was vacated. Id. ¶¶ 16, 18. About a week later, Mr. Plesha reached out to AFOD Figueroa to inquire about the vacant JTTF office space and inform her that he would be moving in, but she denied the move without an explanation. Id. ¶ 18.

On November 28, 2018, HSI GS Warner personally instructed Mr. Plesha during a meeting that she would be his immediate supervisor as part of the HSI HSG and added to the HSI HSG duty call roster. Id. ¶ 20. In addition, HSI GS Warner instructed him to immediately move into the HSI designated cubicle and join the HSI WhatsApp group-chat. Id. Mr. Plesha objected stating that theaforementioned instructions were not part of the job description for the JTTF detail; nevertheless, he was willing to volunteer for HSI HSG tasks. (Docket No. 1 ¶¶ 21, 23). Moreover, Mr. Plesha also told her that he needed to clarify this misunderstanding with his ERO chain of command, for which HSI GS Warner responded, "she had discussed it already, and that it was clear and defined, and that [Mr.] Plesha should consider resigning the JTTF detail if not in agreement." Id. ¶ 21. HSI GS Warner also informed Mr. Plesha that if he were to continue with the JTTF detail, then his spouse—a forensic auditor in HSI GS Warner's office—would be moved and reassigned from said office. Id. ¶ 22. Mr. Plesha was also told to step down from his position as Union Steward² because he allegedly could not be part of a bargaining unit employee while on the JTTF detail. Id. ¶ 23. Lastly, HSI GS Warner presented to Mr. Plesha an interagency agreement, which had never before been mentioned, stating that HSI has oversight over ERO officers assigned to task forces. Id.

On December 17, 2018, Mr. Plesha reached a mutual agreement with AFOD Figueroa and Union representatives resolving the issues concerning his JTTF detail. Id. ¶¶ 26-28. Said agreement was reached after two meetings that were part of the collective bargaining agreement ("CBA")-negotiated grievance procedure. Id. The agreement determined that Mr. Plesha would be assigned the office of ICE's liaison with the JTTF as well as a take-home vehicle and would not be formally assigned to HSI HSG. Id. ¶ 28.

Two days later, HSI Task Force Officer Capriccioni asked Mr. Plesha to assist in nighttime surveillance. Id. ¶ 30. After Mr. Plesha accepted, HSI GS Warner confronted him in front of the entire HSI HSG as to the nighttime surveillance assistance that he had accepted and prohibited him from getting involved in any HSI assignments until HSI management cleared the issue with EROmanagement. (Docket No. 1 ¶ 30). During the interaction, HSI GS Warner instructed HSI JTTF agent Israel Aledo to cancel the scheduled meeting with Mr. Plesha's soon-to-be FBI supervisor. Id. ¶ 31. Mr. Plesha asked HSI GS Warner whether AFOD Figueroa informed her of the aforementioned mutual agreement to which she responded that she did not care of any ERO agreements and that Mr. Plesha would soon be informed of HSI's decision on this matter. Id.

Later that afternoon on December 19, Mr. Plesha received an email from AFOD Gareth Ripa ("Ripa") corroborating HSI GS Warner's decision, apologizing for making a mistake in the ERO-JTTF assignment, and requesting a "yes or no" answer on either declining the JTTF and returning to ERO or else resuming all duties with HSI HSG. Id. ¶ 32. The following day before Mr. Plesha responded to the email, he was removed from the HSI WhatsApp group-chat and had his access card privileges to the HSI premises revoked. Id. ¶ 33. Mr. Plesha has not had any further communications with HSI GS Warner since that interaction. Id.

The following day, AFOD Figueroa informed Mr. Plesha that HSI revoked his JTTF designation and that he would resume his previous duties. Id. ¶ 34. Mr. Plesha requested an explanation as to whom made the decision contravening the assurances of the mutual agreement and Supervisory Detentions and Deportations Officer ("SDDO") Ileana Aguilar stated, "I don't know . . . the higher management, possibly [AFOD Figueroa]." Id. ¶¶ 35-36.

Notwithstanding these events, Mr. Plesha applied to two job openings for SDDO in St. Thomas, U.S.V.I., and in San Juan, P.R., respectively. Id. ¶¶ 52-53. Although he was listed as qualified and referred to the selecting officer for the St. Thomas SDDO job opening, Mr. Plesha was neither given an interview nor a reason why none was granted. Id. ¶ 52. Moreover, Mr. Plesha was not selected for the SDDO position in San Juan after interviewing with AFOD Figueroa. Id. ¶ 53.On April 2019, Mr. Plesha found out that two officers from Puerto Rico were instead promoted to the SDDO positions in San Juan. (Docket No. 1 ¶ 53).

In his complaint Mr. Plesha alleges he is the only foreign national employed with ICE in Puerto Rico and that his supervisors & managers are all female and younger than him. Id. ¶¶ 11, 44, 54. Mr. Plesha claims his coworkers call him "the Russian" and "the Ukrainian" in Spanish to associate him with communists and national socialists. Id. ¶ 44.

Defendant presently moves to dismiss all of Plaintiff's claims for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to FED. R. CIV. P. 12(b)(1), (6). (Docket No. 20).

II. Motion to Dismiss for Lack of Subject-Matter Jurisdiction: 12(b)(1)

a. Standard of Review

A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1). Marrero v. Costco Wholesale Corp., 52 F. Supp. 3d 437, 439 (D.P.R. 2014). When considering a 12(b)(1) motion, the Court may consider all pleadings submitted by the parties. Aversa v. U.S., 99 F.3d 1200, 1210 (1st Cir. 1996). The Court "is not restricted to the face of the pleadings but may consider extra-pleading materials, such as affidavits and testimony to resolve factual disputes concerning the existence of jurisdiction." Fernández Molinary v. Industrias La Famosa, Inc., 203 F. Supp. 2d 111, 114-15 (D.P.R. 2002) (citing Land v. Dollar, 330 U.S. 731, 735 (1947). The pertinent inquiry is whether the challenged pleadings set forth allegations sufficient to demonstrate that the subject matter jurisdiction of the Court is proper. Marrero, 52 F. Supp. 3d at 439; Casey v. Lifespan Corp., 62 F. Supp. 2d 471, 474 (D.R.I. 1999).

The burden of proof in a 12(b)(1) motion falls on the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942). In reviewing the motion, the Court must construe the complaintliberally and the pleadings are to be taken as true and read in a light most favorable to the party opposing the motion. Murphy v. U.S., 45 F.3d 520, 522 (1st Cir. 1995); Brown v. Rhode Island, 160 F. Supp. 2d 233, 235 (D.R.I. 2001). Dismissal would be proper if the facts alleged reveal a jurisdictional defect not otherwise remediable. Sumitano Real Estate Sales (N.Y.), Inc. v. Quantum Dev. Corp., 434 F. Supp. 2d 93, 95 (D.P.R. 2006).

b. Discussion

Defendant argues that Plaintiff's invocation of the Union's CBA-negotiated grievance procedure precludes him from pursuing his claims in any other forum. (Docket No. 20 at 5-7). Defendant cites to 5 U.S.C. § 7121(d), which states: an aggrieved employee affected by a prohibited personnel practice under 5 U.S.C. § 2302(b)(1) (forbidding discrimination against employee based on national origin, gender,...