The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Defendant Michael Chertoff, Secretary of the Department of Homeland Security, has filed a motion to sever and to dismiss Plaintiffs' amended complaint . Having reviewed the motion and the parties' briefs, the Court grants Defendant's motion to dismiss counts five and six but denies without prejudice Defendant's motion to sever the claims of all Plaintiffs.
Plaintiffs Herman Nelson, Andre Lawson, Ernest Carter, and Joel Decatur all are current or former employees in the Chicago field office of the Federal Air Marshal Service (also referred to as "FAMS"). Am. Compl., ¶ 1-2. Plaintiffs' amended complaint contains six counts: a discrimination claim brought pursuant to Title VII of the Civil Rights Act of 1964 42 U.S.C. §§ 2000(e) et seq. (Count I); a hostile work environment claim brought pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-634 (Count II); an ADEA discrimination claim (Count III); a combined Title VII and ADEA retaliation claim (Count IV); a constitutional claim brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Count V); and a criminal witness tampering claim brought under 18 U.S.C. § 1512(b)(1) and (2)(A) (Count VI).
The Federal Air Marshal Service is a division of the Transportation Security Administration, an agency within the Department of Homeland Security. Defendant Michael Chertoff, the Secretary of the Department of Homeland Security, is being sued in his official capacity as director of the Department of Homeland Security.
Plaintiffs Nelson and Carter are both African-American and over the age of forty. Am. Compl., ¶ 23, 27. They began working in the Chicago field office in 2002 and still work there.*fn1
Pl.'s Resp. to Motion to Sever and Dismiss, ¶ 2-3. Plaintiff Nelson alleges that Defendant discriminated against him based on his age and race when he was not promoted to an Assistant to the Special Agent in Charge in either the Atlanta, Georgia or Dallas, Texas field offices. Am. Compl., ¶ 23. Plaintiff Carter alleges that Defendant discriminated against him based on his age and race when he was not promoted within the Chicago field office and three younger, white men with less experience were promoted instead of him. Am. Compl., ¶ 27. Carter also contends that Defendant retaliated against him by removing him from an acting supervisory position after he complained to an Equal Employment Office (EEO). Id.
Plaintiff Lawson, also African-American and over the age of forty, worked at the Chicago field office from 2003 until March 2005. Pl.'s Resp., ¶ 4. Lawson alleges that Defendant discriminated against him based on his race when Lawson was discharged. Am. Compl., ¶ 24. He bases his allegations on the circumstances of his discharge and on a conversation, recounted by Plaintiff Decatur, during which Lawson's supervisors allegedly used a racial slur in reference to him. Id. ¶ 24-25.
Plaintiff Joe Decatur worked at the Chicago field office beginning in 2002 through May 2006. Pl.'s Resp., ¶ 5. Decatur alleges that Defendant retaliated against him after he filed a complaint with the Office of Professional Responsibilities that stated that a federal air marshal named "Murray" had told him that two of his supervisors -- Frank Tucci and Robert Fanter -- used a racial slur when talking about Plaintiff Lawson. Am. Compl., ¶ 26. Following Decatur's complaint, the Office of Professional Responsibilities conducted an investigation. Id. Air marshal Murray later denied overhearing a racial slur, and Plaintiff Decatur was terminated for conduct unbecoming a federal air marshal. Id.
Plaintiffs' amended complaint names five Caucasian men who comprised a "supervisory group of overseers * * * for the Career Board of the Chicago Federal Air Marshals": Michael DeMarte, Howard Jordan, Scott Ralston, Frank Tucci, and Robert Fanter. Am. Compl., ¶ 5-9. From August 2002 to August 2005, Plaintiffs' head supervisor was Special Agent in Charge Michael DeMarte. Pl.'s Resp., ¶ 7. Then, starting in August 2005, Howard Jordan was the Special Agent in Charge. Id., ¶ 8. Prior to August 2005, Jordan had been an Assistant to the Special Agent in Charge. Am. Compl., ¶ 6. Scott Ralston also acted intermittently as Special Agent in Charge during this period. Pl.'s Resp., ¶ 9. Beginning in 2002, Frank Tucci and Robert Fanter were Assistants to the Special Agent in Charge. Id., ¶ 10-11. According to Plaintiffs' allegations, all of these men played a role in deciding which air marshals under their supervision should be promoted. Am. Compl., ¶ 10-11. Moreover, Plaintiffs allege that in March 2006 these supervisors, acting alone or in concert with one another, issued a directive to "one or all of the squads in the Chicago Field Office * * * stating that 'anyone who would testify on behalf of any FAM in connection with any complaint or otherwise, had to first inform his supervisor, and that said decision to testify [ ] would not be viewed upon favorably by management.'" Am. Compl., ¶ 47.
Plaintiffs filed their amended complaint on October 10, 2007. Defendant moved to dismiss the constitutional claim brought pursuant to Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1970) (Count V) and the criminal witness tampering claim brought under 18 U.S.C. § 1512(b)(1) and (2)(A) (Count VI), and also have asked the Court to sever the claims of the individual Plaintiffs.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic, 127 S.Ct. at 1965, 1973 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts ...