deprive the plaintiff of his civil rights. Additionally, Parker is not a "person" under § 1985.
The plaintiff alleges that Hughey, Executive Director of NCIL, "colluded" with David Esquith from the Department of Education and circumvented her agency's regulations regarding issuance of job vacancy announcements in an effort to keep the plaintiff from getting his job back. See Opp'n at 6. Other than this conclusory allegation, however, the plaintiff has failed to allege any facts showing the existence or establishment of an agreement between Hughey and Esquith.
The plaintiff is suing Kinard for allegedly shredding files and erasing computer files regarding the plaintiff's EEO claims, but the plaintiff does not allege that Kinard conspired with anyone, let alone that she took these actions in furtherance of a conspiracy. See Am. Comp. at 2. As mentioned above, the plaintiff also alleges that Kinard "alerted" Stein and Capozzi that the plaintiff was angry and that they would be hearing from him, but this speculative and conclusory statement does not constitute an allegation of a meeting of the minds sufficient to state a § 1985 claim.
Consistent with the reasoning of other courts, this Court is left with no choice but to dismiss the plaintiff's § 1985(3) claims for his failure to allege (beyond conclusory assertions) that there was an agreement or meeting of the minds between any of the defendants to violate his civil rights because of his membership in a protected class. See McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (holding that district court properly dismissed pro se prisoner's § 1985 claim for failure to state claim where prisoner failed to allege meeting of minds between alleged conspirators); Pao v. Holy Redeemer Hosp., 547 F. Supp. 484 (E.D. Pa. 1982) (holding that claim alleging racially motivated animus but failing to allege elements of conspiracy stated a claim under Title VII but did not state a § 1985 claim).
2) The plaintiff has failed to allege with particularity a nexus between the defendants' overt conspiratorial acts and his alleged injury.
The plaintiff's § 1985 claim also must be dismissed because at the pleading stage a plaintiff is required to allege a connection between the overt acts, the furtherance of the conspiracy and the plaintiff's injury. See Watson v. Clark, 716 F. Supp. 1354, 1358 (D. Nev. 1989) (granting motion to dismiss where plaintiff failed to allege specific facts supporting alleged conspiracy: "In order to support a claim for conspiracy, plaintiff must allege facts showing particularly what acts a defendant performed to carry the conspiracy into effect, how those acts fit into the conspiracy, and how injury to the plaintiff was foreseeable therefrom.") (citing Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir. 1959), overruled on other grounds, Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962)); Ibarra v. Las Vegas Metro. Police Dept., 572 F. Supp. 562, 565 (D. Nev. 1983)); Morpurgo v. Board of Higher Educ., 423 F. Supp. 704, 713 (S.D.N.Y. 1976) (granting motion to dismiss and holding that complaints based on conspiracy provisions of the Civil Rights Act cannot rest on vague and conclusory allegations but must allege with at least some degree of particularity the overt acts by defendants that were reasonably related to the promotion of the conspiracy). Even on his third try, the plaintiff has not met his burden of pleading.
While the plaintiff has alleged several actions taken by the defendants individually and independently, he has failed to allege any overt acts pursuant to, or manifest of, a collective agreement to keep the plaintiff unemployed because of his membership in a protected class. Thus, even if Kinard's alleged shredding of files, the purported missing pages from Barram's log, or Hughey's alleged efforts to circumvent her agency's regulations regarding dissemination of job vacancy announcements were liberally construed as overt acts of unlawful, individual discrimination, the plaintiff has failed to allege how these acts either evidenced or furthered a conspiracy between any of these defendants.
3) The plaintiff has failed to allege that the defendants were motivated by a class-based, discriminatory animus.
Finally, the plaintiff's § 1985 claim must be dismissed because he has failed to allege that any of the defendants' actions were motivated by some class-based, invidiously discriminatory animus. See United Bhd. of Carpenters and Joiners of Am. v. Scott, 463 U.S. 825, 835, 103 S. Ct. 3352, 3359, 77 L. Ed. 2d 1049 (1983) (holding that § 1985(3) requires allegation of some class-based, invidiously discriminatory animus behind conspirators' actions); Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (holding that for plaintiff to make out § 1985(3) claim, allegation of conspiracy must be motivated by some racial or perhaps otherwise class-based invidiously discriminatory animus). Beyond alleging that he belongs to several, arguably-protected classes,
the plaintiff has failed to allege a single fact that would support a claim that any of the defendants' actions were taken because of his status as a member of any of these classes. The allegation that the defendants "have conspired in such a manner to ensure that [the] plaintiff remains unemployed/underemployed," Comp. at 3, does not sufficiently state a claim under § 1985(3), as a matter of law.
c. Viewing the Complaint most favorably for the plaintiff, he has attempted to bring a claim of federal employment discrimination for which his exclusive remedy is Title VII.
After sorting through the plaintiff's (sometimes incomprehensible) pleadings, the plaintiff at best has alleged a garden variety employment discrimination claim stemming from the end of his employment at the NCIL and his failure to be re-hired by the NCIL or by the Access Board. The plaintiff's employment discrimination claim, however, cannot automatically be re-cast as a § 1985 claim, especially where (1) his conspiracy allegations are wholly speculative and conclusory and (2) the § 1985 allegations are indistinguishable from his employment discrimination allegations. Such a result would undermine the Congressionally-created, pre-emptive scheme for dealing with employment discrimination claims by federal employees - i.e., Title VII. See Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 376-78, 99 S. Ct. 2345, 2350-51, 60 L. Ed. 2d 957 (1979) (holding that if violation of Title VII could be asserted through § 1985(3), complainant could avoid most, if not all, of detailed and specific provisions of Title VII); Brown v. GSA, 425 U.S. 820, 829, 96 S. Ct. 1961, 1966, 48 L. Ed. 2d 402 (1976) (dismissing § 1981 claim because Title VII is the "exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination"); cf. Ethnic Employees of Library of Congress v. Boorstin, 243 U.S. App. D.C. 186, 751 F.2d 1405, 1415-16 (D.C.Cir. 1985) (holding that where the plaintiffs' alleged injury was employment discrimination, Title VII was their exclusive remedy; however, the claim that the plaintiffs were punished for their constitutionally protected criticisms of their employer was not pre-empted by Title VII because Title VII provided no protection against this injury). Under the alleged facts of this case, Title VII would appear to be the exclusive remedy for the plaintiff's federal employment discrimination claim. Accordingly, this Court is without subject matter jurisdiction over the plaintiff's claim. See Fed. R. Civ. P. 12(b)(1).
For the foregoing reasons, the Court shall grant the defendants' Motions to Dismiss. The Court shall issue an order of even date herewith consistent with the foregoing Memorandum Opinion.
April 11, 1997
United States District Judge
This matter came before the Court on the defendants' motions to dismiss. For the reasons stated in the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 11th day of April, 1997,
ORDERED that the defendants' motions to dismiss are GRANTED; and it is
FURTHER ORDERED that the Clerk is directed to DISMISS this case from the docket of this Court.
April 11, 1997
UNITED STATES DISTRICT JUDGE