Sheri Qualters - The National Law Journal August 17, 2010
A Boston federal magistrate judge on Monday threw cold water on a government motion to dismiss a female FBI agent's lawsuit alleging that she contracted a tropical disease at Guantánamo Bay, Cuba, because of discriminatory housing conditions.
The magistrate also directed the plaintiffs' lawyer to get more information about the whereabouts of the plaintiffs' personnel records from the FBI before she rules on the government's motion to transfer the case from Boston to the District of Columbia.
Theresa Ann Foley sued Attorney General Eric Holder Jr. in the District of Massachusetts in July 2009 over events during her service at the U.S. Naval Base in Guantánamo Bay from October 2003 through July 2004. She also claims that she "was subjected to sexually harassing remarks" and that federal employees at the base engaged in "spring break" behavior, including "drunken carousing in a sexually charged atmosphere."
The Department of Justice filed a motion in June to dismiss for improper venue or to transfer the case to federal court in the District of Columbia. The government's brief argued that 'there is no basis upon which plaintiff can argue that she would have worked in Boston, Massachusetts, but for the alleged unlawful employment practices she cites."
During a hearing, Chief Magistrate Judge Judith Dein said she's not inclined to find that the plaintiffs' lawyer improperly filed the case in Massachusetts in bad faith.
"You will have to really convince me that there's a reason to challenge integrity of [plaintiff's] counsel, Dein told Assistant U.S. Attorney Rachael Splaine Rollins.
Rollins argued that the only link between Foley and the FBI's Boston office is that she received a hardship transfer to the office in December 2005 or January 2006 "because she contracted this terrible disease while in Gitmo."
Foley has sued for gender discrimination, disability discrimination and retaliation under Title VII of the Civil Rights Act of 1964. She claimed that she and other females were assigned to inferior, rat-infested housing at Guantánamo. She contracted leptospirosis, caused by exposure to the feces and urine of rats and other vermin. She also claimed that she sustained a leg injury during a firearms qualification test because the FBI denied her request for a reasonable accommodation. The injury caused the disease to spread, according to Foley's court papers.
Dein ruled from the bench that Foley's lawyer Mitchell Notis, a solo practitioner in Brookline, Mass., may conduct additional discovery. Dein suggested that Notis call the FBI's assistant director for records William Hooton to clarify which of Foley's records are in Boston and which are in Washington.
"The records are the records -- they're one place or another," Dein said.
Dein added that Rollins could listen to the call.
According to court papers, Foley was assigned to the FBI's Washington Field Office from about March 2000 through December 2005. She applied for the one-year temporary duty at Guantánamo to interrogate detainees. She was stationed in there between Oct. 7, 2003 and July 2004.
Foley "has never set foot in the Boston office," because she hasn't worked since leaving Guantánamo, Rollins said.
"We admit she's disabled and cannot work, but the government does not believe it's based on discrimination on our part," Rollins said. The government assigned Foley to better housing at "within in a month of her request," she added.
"Rats were everywhere," Rollins said. "This is Cuba. It wasn't the Ritz at Gitmo. We were dealing with an infestation."
Notis argued that the case should remain in the District of Massachusetts because Foley has been assigned to the FBI's Boston office for several years and may not be able to attend a trial in Washington. "The fact that Foley can barely walk and lives in the basement of parents' home weighs much more heavily than any inconvenience to the government to fly a few people here," he said.
Based on the record, it seems likely the case will be transferred to Washington, said Alan Lescht of Washington-based employment law firm Alan Lescht & Associates. Lescht isn't involved in the Foley case.
"When you're dealing with venue provisions in Title VII cases, it's where the documents are or the decisions makers are," Lescht said. "It seems to me like it would be transferred."