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FLANAGAN v. RENO

June 2, 1998

MICHAEL FLANAGAN, NORBERT KUKSTA, MELVIN SCHABILION, SAUL WEINSTEIN, and FRANCIS E. WHITE, Plaintiffs,
v.
JANET RENO, Attorney General of the United States, and the DRUG ENFORCEMENT ADMINISTRATION, Defendants.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 BUCKLO, District Judge.

 On August 20, 1997, the plaintiffs filed a four-count amended complaint against the defendants. In Counts I and II, they allege that Janet Reno, Attorney General of the United States, in her official capacity, discriminated and retaliated against them in, violation of Title VII, 42 U.S.C. § 2000 e et seq. In Count IV, they allege that the Drug Enforcement Administration ("DEA") violated their right to privacy as protected by the Privacy Act, 5 U.S.C. § 552a. The plaintiffs voluntarily dismissed Count III against the individual defendants. *fn1" The two remaining defendants, the Attorney General and the DEA, move to dismiss the other three counts and to strike certain remedies. For the reasons set forth below, the defendants' motions are granted in part and denied in part.

 Background

 The plaintiffs, Michael Flanagan, Norbert Kuksta, Melvin Schabilion, Saul Weinstein, and Francis E. White, were at all relevant times special agents of the DEA in the Chicago, Illinois Field Division. All plaintiffs are Caucasian males. Mr. Weinstein is also Jewish.

 The plaintiffs allege the following facts. In or about September, 1994, a female student who attended the DEA Basic Narcotics Training School wrote a letter to Kenneth Cloud, Special Agent-In-Charge in Chicago, reporting that she had become offended by some language that was used during the course of Mr. Schabilion's training sessions. As a result of the letter, the Chicago Field Office conducted an investigation of Mr. Schabilion. Upon review of the investigation and its findings, Mr. Cloud gave Mr. Schabilion a Letter of Reprimand for improper conduct and forwarded the letter to DEA Headquarters for approval. The report and proposed disciplinary action were rejected and a full investigation was opened. Subsequently, Mr. Flanagan, Mr. Kuksta, Mr. Weinstein, and Mr. White became targets of the investigation as well.

 Count I alleges that the plaintiffs were discriminated against and harassed based on their sex, male, and their race, Caucasian. Mr. Weinstein further claims that he was discriminated against because he is Jewish. Plaintiffs allege that they were singled out for a disparate and biased disciplinary investigation and ultimate discipline. Count II alleges that DEA management launched its investigation against the plaintiffs in retaliation for objecting to discrimination and for assisting other DEA employees with their discrimination claims. DEA management is alleged to have transferred plaintiffs from the Chicago Field Office and to have taken away their badges, guns, and credentials. Count IV alleges that the DEA violated the plaintiffs' rights under the Privacy Act.

 Motion to Dismiss

 The defendants initially seek to dismiss Counts I, II, and IV for failure to exhaust administrative remedies. The plaintiffs, however, have alleged that they exhausted their remedies. Consequently, I do not dismiss the counts on this ground.

 A. Count I: Discrimination

 In McDonnell v. Cisneros, 84 F.3d 256, 257 (7th Cir. 1996), the Secretary of Housing and Urban Development ("HUD") received two anonymous letters accusing the plaintiffs, HUD's Regional Inspector General ("IG") for Investigations and the Assistant Regional IG, of lurid job-related sexual misconduct. Because the plaintiffs were employed in the IG's office, which would normally investigate such charges, the Secretary retained Defense Department investigators. Id. The investigators "interviewed the plaintiffs and other employees of the [IG's] Office in a hostile and unprofessional manner, indicating to the persons they interviewed their personal belief that the plaintiffs were guilty of the charges made in the anonymous letters." Id. at 258. They further conducted their investigation in such manner as to "give rise to even more lurid rumors, widely circulated within HUD." Id. Both plaintiffs were eventually exonerated and filed complaints that the treatment they received during the investigation constituted sexual harassment under Title VII. Id.

 The Seventh Circuit addressed the question of "whether an investigation of sexual harassment that exceeds the proper limits is itself a form of actionable sexual harassment." Id. at 260. The court found that no such cause of action existed for two reasons, one practical and one doctrinal. Id. at 261. "The practical objection is that it places the employer on a razor's edge." Id. The employer would be liable for failing to investigate allegations of sexual harassment and liable for vigorously investigating such charges. Id.

 The doctrinal objection revolved around Congress' specific provision with respect to the legal remedies of victims of improper investigations by federal officers. Id. If the investigators had told the people who they were interviewing that the plaintiffs had engaged in job-related sexual misconduct, which statements were allegedly false and defamatory, the investigators could have been guilty of defamation. Id. The investigators would have a defense of qualified immunity but the plaintiffs could substitute the United States as a defendant under the Federal Tort Claims Act ("FTCA"), as amended by the Westfall Act. Id. The United States, however, is not liable under the FTCA for defamation by its employees. Id. The court concluded that to allow the plaintiffs' Title VII claim would be to inappropriately amend the FTCA and circumvent the Westfall Act by allowing a defamation claim. Id.

 Under McDonnell, the plaintiffs cannot bring a harassment claim based on the DEA's improper conduct during its investigation into alleged misconduct. The plaintiffs contend, however, that their case can be distinguished from McDonnell because they have alleged discrimination on the basis of their gender or religion. The rationale for McDonnell, however, extends to discrimination claims. An employer is still placed on "a razor's edge." If it fails to investigate alleged discrimination, it may be liable under Title VII. But if it investigates discrimination, the alleged ...


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