United States District Court, D. Maine
JOHN A. BEACH, PLAINTIFF
MICHAEL TODD SMITH, INDIVIDUALLY, AND CMC & MAINTENANCE, INC., DEFENDANTS
JOHN A BEACH, Plaintiff: JOHN P. GAUSE, LEAD ATTORNEY,
EASTERN MAINE LAW LLC, BANGOR, ME.
MICHAEL TODD SMITH, Defendant, Cross Defendant: ANDREW K.
LIZOTTE, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, DISTRICT
OF MAINE, PORTLAND, ME.
& MAINTENANCE INC, Defendant, Cross Claimant: DAVID J. VAN
DYKE, LYNCH & VAN DYKE, LEWISTON, ME.
AND ORDER ON DEFENDANT SMITH'S MOTION TO DISMISS
BROCK HORNBY, UNITED STATES DISTRICT JUDGE.
private employee of a government contractor have a Bivens
damages remedy against a federal Border Patrol
agent-in-charge at the Border Station where the employee is
assigned to work when the agent-in-charge retaliates against
him (ultimately leading to the private employee's
dismissal) because he complained against the agent for
persecution at the Station and because he participated in
discrimination investigations at the Station involving
charges brought by other people--federal employees--against
the agent? The government (representing the agent-in-charge)
has moved to dismiss the Bivens count under Fed.R.Civ.P.
12(b)(6) for failure to state a claim upon which relief can
be granted. I Grant the motion. In doing so, I view the facts
alleged in the Complaint in the light most favorable to the
Beach was a janitor and also did lawn maintenance at the
Calais Border Patrol Station in Baring, Maine. CMC &
Maintenance, Inc., a Maine business corporation that has a
government contract with the United States Border Patrol,
employed Beach to provide those services. Compl. ¶¶ 17-20
(ECF No. 1). Michael Todd Smith was the Border Patrol's
Patrol-Agent-in-Charge, the highest ranking agent at the
Calais Station. Id. ¶¶ 25-26. Beach's parents
are Jehovah's Witnesses, and Beach was studying to become
a Jehovah's Witness. Id. ¶ 28.
performed his job well, kept the Station clean, and did
whatever he was asked to do. Id. ¶ 24.
Agent-in-Charge Smith recurrently made highly offensive
comments to Beach about religion, including Beach's and
his parents' religion and that of others. (For example,
when told Beach's parents were Jehovah's Witnesses,
" Gees, now I have another reason to hate your
parents," and in referring to a door-to-door salesman,
" Why didn't you offer to have a bible study with
him? That would have gotten rid of him for sure," "
The only good Catholic is a dead Catholic," and " I
don't like Catholics." ) Id. ¶¶ 27-30.
30, 2012, Beach complained about this treatment to his
supervisor at the private company that employed him, and on
May 31, the supervisor passed the complaint on to the Border
Patrol Facilities Manager who administered the government
contract, asking for it to stop. Id. ¶¶ 31-32. In
retaliation, Agent-in-Charge Smith complained that Beach was
not mowing the Station lawn uniformly (after measuring the
grass with a ruler), and threatened to deduct money from
Beach's private employer as a result. Id. ¶ 33.
Beach had made no change in how he mowed the lawn and had
received no previous criticism about it. Id. ¶ 34.
Smith then also falsely reported that Beach was always
sitting in the break room or in his office playing games on
the computer. Id. ¶ 35. As a result, Beach's
private employer reduced Beach's work schedule from 40 to
30 hours. Id. ¶¶ 36-37. On June 11, Smith complained
about Beach's job performance in writing for the first
time (an email to the Border Patrol contract manager,
forwarded to the private employer), even though there had
been no change in Beach's job performance. Id.
¶¶ 38-40. Smith sent another such email June 26, although
again there had been no change in Beach's job
performance. Id. ¶¶ 41-42.
August 2013, the Border Patrol conducted a fact-finding
investigation of complaints against Agent Smith by a Border
Patrol employee (not Beach), charging Smith with
discrimination based on age, sex, religion, disability, race,
and prior Equal Employment Opportunity (" EEO" )
activity. Id. ¶ 43. In its investigation, the Border
Patrol interviewed Beach for approximately 2-1/2 hours and
Beach answered questions that implicated Smith in the alleged
discrimination. Id. ¶ 44. Agent Smith knew of the
interview and was informed later what Beach said.
Id. ¶ 46. In that same month, Beach was a witness in
an Equal Employment Opportunity investigation prompted by
still another Border Patrol employee who accused Agent Smith
of discrimination based on age, sex, religion,
disability, and retaliation for prior EEO activity.
Id. ¶ 47. In that investigation, Beach submitted a
17-page declaration that included allegations of religious
persecution. Id. ¶ 48. Smith read the declaration
Agent Smith became hypercritical of Beach's work, and
stopped speaking to him or even acknowledging him.
Id. ¶¶ 50-51, 54-56. On September 24, 2013, in
retaliation for Beach's role in the fact-finding and EEO
investigations as well as his earlier religious persecution
complaint, Smith emailed to the contract manager a list of 63
complaints including 17 photos, the vast majority of which
were about dirt and dust caused by construction activities
then occurring at the Calais site. Id. ¶¶ 57-60.
Beach's supervisor said to Beach: " [T]here's no
question in my mind that this place is going to remain a
hostile work environment, John, until one of two things
happen: either you get fired, or Todd Smith gets fired."
Id. ¶ 62.
September 27, 2013, and October 18, 2013, Beach complained to
the Border Patrol Diversity Division that he was being
retaliated against. Id. ¶ 64. On October 21, the
Diversity Division told Beach that it could not assist him
because he was not a Border Patrol employee. Id. On
November 25, 2013, Beach's private employer terminated
his employment, giving false reasons of poor work performance
and leaving work early numerous times. Id. ¶¶ 65-66.
The real reasons were Beach's involvement in the
religious persecution complaint and in the fact-finding and
EEO investigations, and Agent Smith's complaints to the
contractor/employer about Beach, even though Beach's
employer knew that Smith's complaints were in retaliation
for Beach's religious persecution complaints and EEO
involvement. Id. ¶¶ 67-68.
filed an employment discrimination charge with the Maine
Human Rights Commission (" MHRC" ) and the Equal
Employment Opportunity Commission (" EEOC" ).
Id. ¶ 14. The MHRC issued a right-to-sue letter; the
EEOC issued a Dismissal and Notice of Rights letter.
Id. ¶¶ 15, 16. Beach then filed his complaint in
this court against both Smith individually and Beach's
private employer, seeking declaratory relief, an injunction
against further violations of his constitutional and
statutory rights, and monetary damages. Id. ¶ 99.
Count I, entitled " First Amendment," is directed
against Agent Smith. It states that Beach's "
participation in the fact-finding and EEO investigations and
his religious persecution complaint were protected by the
First Amendment to the United States Constitution," that
they were a substantial factor in Smith's conduct toward
Beach, that Smith was retaliating against Beach for his
protected activity, and that Smith was acting under color of
federal law. The relief on Count I can only be damages
because Beach is no longer employed at the Station, and Smith
has no ability to reinstate him to his position with his
employer or at the Station. The government has moved to
dismiss Count I for failure to state a claim, arguing that
federal law provides Beach no relief against
Smith. Def. Smith's Mot. to Dismiss (ECF
state or local official acting " under color of"
state law violates a constitutional right, he is
liable to the injured party under the Civil Rights Act of
1871, 42 U.S.C. § 1983. There is no parallel statutory
remedy available when a federal official violates a
person's constitutional rights. But the Supreme Court has
sometimes recognized an implied cause of action for damages
against federal officials when they violate constitutional
rights. See e.g., Bivens v. Six Unknown Named
Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971) (Fourth Amendment). Bivens is the basis for
Beach's claim for relief against Border Patrol
Agent/federal employee Smith in Count I.
2007, the Supreme Court articulated the current import of
Bivens. Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588,
168 L.Ed.2d 389 (2007). In determining whether a viable
Bivens claim exists, the Supreme Court now instructs lower
courts, assuming that a constitutional right has been
violated, to ask first " whether any alternative,
existing process for protecting the interest amounts to a
convincing reason for the Judicial Branch to refrain from
providing a new and freestanding damages remedy."
Id. at 550. If no alternative remedy provides a
convincing reason to refrain from providing a damages remedy,
then, as a second step, " the federal courts must make
the kind of remedial determination that is appropriate for a
common-law tribunal, paying particular heed, however, to any
special factors counselling hesitation before authorizing a
new kind of federal litigation." Id. (citing
Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76
L.Ed.2d 648); accord Minneci v. Pollard, 565 U.S.
118, 132 S.Ct. 617, 621, 181 L.Ed.2d 606
(2012). I apply that two-step analysis here.
Bivens Even Cover First Amendment Violations?
first, the government implies that allegations of First
Amendment rights violations may never be eligible for Bivens