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Beach v. Smith

United States District Court, D. Maine

December 10, 2015

JOHN A. BEACH, PLAINTIFF
v.
MICHAEL TODD SMITH, INDIVIDUALLY, AND CMC & MAINTENANCE, INC., DEFENDANTS

          For JOHN A BEACH, Plaintiff: JOHN P. GAUSE, LEAD ATTORNEY, EASTERN MAINE LAW LLC, BANGOR, ME.

         For MICHAEL TODD SMITH, Defendant, Cross Defendant: ANDREW K. LIZOTTE, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, DISTRICT OF MAINE, PORTLAND, ME.

         For CMC & MAINTENANCE INC, Defendant, Cross Claimant: DAVID J. VAN DYKE, LYNCH & VAN DYKE, LEWISTON, ME.

Page 42

         DECISION AND ORDER ON DEFENDANT SMITH'S MOTION TO DISMISS

         D. BROCK HORNBY, UNITED STATES DISTRICT JUDGE.

         Does a 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 religious

Page 43

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 private employee.

         Facts

         John A. 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.

         Beach 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.

         On May 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.

         In 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,

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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 shortly thereafter.[1]

         Thereafter, 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.

         On 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.

         Procedural History

         Beach 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.

         Only 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.[2] Def. Smith's Mot. to Dismiss (ECF No. 11).

         

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         Analysis

         When a 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.

         In 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).[3] I apply that two-step analysis here.

         Does Bivens Even Cover First Amendment Violations?

         But first, the government implies that allegations of First Amendment rights violations may never be eligible for Bivens ...


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