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Gonzalez v. Velez

United States Court of Appeals, First Circuit

July 24, 2017

VICENTE GONZÁLEZ ET AL., Plaintiffs, Appellants,
ROGELIO VÉLEZ ET AL., Defendants, Appellees, OCTAVIO OTERO ET AL., Defendants.


          Nicolás Nogueras-Cartagena and Nogueras Law & Associates on brief for appellants.

          Michael J. Carlson, Litigation Attorney, United States Army Litigation Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellees.

          Before Howard, Chief Judge, Selya, Circuit Judge, and McConnell, District Judge. [*]

          SELYA, Circuit Judge.

         This is a federal-sector employment discrimination case, in which the plaintiffs have attempted to improve their lot by invoking extravagant theories of liability. The plaintiffs' theories run headlong into an impenetrable barrier forged by the combination of the Civil Service Reform Act (CSRA), see 5 U.S.C. § 1201 (and scattered sections of Title 5 of the U.S. Code), and Title VII, see 42 U.S.C. §§ 2000e to 2000e-17. The plaintiffs' claims cannot breach this barrier either by cloaking them in the raiment of the Bivens doctrine, see Bivens v. Six Unknown Named Agents of FBN, 403 U.S. 388, 389 (1971), or by garbing them as causes of action brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), see 18 U.S.C. §§ 1961-1968. Accordingly, we affirm the district court's dismissal of the plaintiffs' third amended complaint.

         I. BACKGROUND

         Because this appeal follows the granting of a motion to dismiss, we draw the facts from the operative version of the complaint. See Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013). We are at liberty, though, to supplement those facts with facts "gleaned from documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).

         Plaintiff-appellant Vicente González and plaintiff-appellant Víctor Franco were hired in 1996 as civilian employees of the Department of Army Civilian Police (DACP). As such, both men were attached to the Army garrison at Fort Buchanan in Guaynabo, Puerto Rico. By 2007, González had risen to the rank of chief. Franco remained an investigator. At that time, long-simmering workplace conflicts came to a boil: the plaintiffs allege that they were victims of a "witch hunt, " culminating in a criminal investigation instigated by a cadre of coworkers and supervisors.

         In February of 2007, González's direct supervisor, James Adamski, announced plans to leave his post as the head of the Directorate of Emergency Services (DES) at Fort Buchanan. González told Adamski privately of his interest in the position. This news spread - and it did not receive unanimous acclaim. According to the plaintiffs, some of their colleagues hatched a plot to keep the job in the hands of a non-Puerto Rican and non-Hispanic individual. The plot had its genesis (the plaintiffs say) in the belief that such an individual would be more likely to acquiesce in the garrison's corrupt culture.

         To put meat on these bones, the plaintiffs asserted that the garrison commander (Stephen Ackman) and a staff judge advocate (Mark Nozaki) resented González's refusal to cooperate with their pernicious practices, which included wiping away valid traffic citations and conducting warrantless electronic surveillance. Adamski, Ackman, Nozaki, Raymond Johnson (the garrison's fire chief), and Gunner Pederson (the garrison's deputy commander) "all conspired to ensure that González could not compete for the DES Director's opening, and to terminate his employment as Chief of Police of the DACP." Relatedly, the conspirators contrived to have Johnson, rather than González, appointed as the interim DES director. Other DACP personnel - including Rogelio Vélez, Octavio Otero, and Edwin Sepúlveda - were part of the conspiracy. As such, they began spreading false and defamatory information about the plaintiffs. For example, Vélez and Otero approached a federal prosecutor and instigated a criminal investigation of the plaintiffs' activities. In this regard, they told the prosecutor that González had been using his position for personal gain and that Franco had been employing his security credentials for "inappropriate purposes."

         The plaintiffs further alleged that the prosecutor swallowed this bait hook, line, and sinker: he relayed the negative information to the Criminal Investigations Division (CID), which then assigned two agents, Billy Higgason and Ramón Román, to look into the matter. In the course of the probe, Vélez gave a sworn statement, describing several examples of González's purported abuse of his authority. For instance, Vélez said that González had nullified several traffic citations in exchange for money or favors, had falsified a DACP investigator's training certificate, had attempted to interfere with the detention of a suspected drug smuggler, and had solicited investments in his sister-in-law's music album from coworkers. Sepúlveda confirmed that González had asked him to invest $2, 000 in the sister-in-law's music album. So, too, Otero identified a number of instances in which González ostensibly had taken actions that were either illegal or improper.

         According to the complaint, Otero also implicated Franco. He told investigators that Franco had brought a relative into the garrison and allowed him to leave with several cases of liquor. The investigators were given security videotape purporting to show Franco loading boxes into a vehicle.

         With the CID investigation underway, Ackman - in consultation with Nozaki and Pederson, among others - decided to suspend the plaintiffs. He placed González and Franco on administrative leave in April of 2007, but they continued to receive their regular pay and benefits.

         In the plaintiffs' view, it became crystal clear, as early as May 31, that there was no probable cause to bring criminal charges. Nevertheless, Franco was not allowed to return to work until late July. Even then, he was assigned mundane tasks for approximately four months until he was permitted to return to his regular work.

         The investigation continued until mid-November of 2007, when the CID issued a report finding no evidence of illegal activity. Despite this finding, Johnson had González's security clearance revoked near the end of November. As late as the following February, Pederson urged that the revocation remain in effect. González's security clearance was not restored until April of 2008 - and it was not until then that González regained his former position.

         While still on administrative leave, the plaintiffs - both of whom are Hispanic and Puerto Rican - began complaining about disparate treatment due to race and national origin. They sought advice from the Army's Equal Employment Opportunity (EEO) office, which provided counseling and, in memoranda documenting the completion of that counseling, notified each plaintiff of his right to file a formal complaint within fifteen days. There is no allegation that González ever filed a formal EEO complaint.

         Franco, however, filed a formal complaint within the prescribed time period. He received a final decision on June 11, 2007, which concluded that "no employment harm" had occurred because Franco had not experienced any loss of pay or pay grade. This decision explicitly warned that Franco had a limited time in which to take further action: he could either appeal the decision to the Equal Employment Opportunity Commission (EEOC) within thirty days or file suit in federal court within ninety days. See 29 C.F.R. §§ 1614.402(a), 1614.407(a). Franco did neither.

         On March 17, 2008 (well over ninety days after Franco's receipt of the final administrative decision), González and Franco joined forces and filed this action in the federal district court.[1]Their complaint named twelve defendants (all sued in their personal capacities): Vélez, Otero, Sepúlveda, Adamski, Johnson, Ackman, Nozaki, Pederson, Higgason, Román, Berta Santiago (a Fort Buchanan detective), and Jorge Quiñones (a DACP investigator). We skip over a salmagundi of intervening pleadings, not relevant here, and focus on the plaintiffs' third amended complaint. That complaint alleged deprivations of the plaintiffs' First, Fourth, Fifth, and Fourteenth Amendment rights and sought damages under the Bivens doctrine. See 403 U.S. at 389. It also proffered RICO claims, see 18 U.S.C. §§ 1961-1968, positing that the named defendants conspired "to defraud the criminal investigation process and to fabricate a fraudulent criminal investigation against [p]laintiffs." In support of the RICO claims, the complaint set forth a laundry list of predicate acts, see id. ยง 1961(1), including obstruction of ...

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