Opinion
Civil Action 2:21-cv-02554-DCN-JDA
01-11-2022
Shawntelle Matney, Plaintiff, v. The Honorable Thomas V. Harker Acting Secretary of the United States Department of Navy; Gary Caldwell, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Defendant Caldwell's motion to dismiss. [Doc. 13.] Plaintiff alleges discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and a First Amendment retaliation claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Doc. 1 ¶¶ 90-140.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff actually asserts her First Amendment retaliation claim against Caldwell under 42 U.S.C. § 1983. [Doc. 1 ¶140.] However, because Caldwell is a federal actor, the claim is properly construed as a Bivens claim. See Navarrete v. United States, 532 Fed.Appx. 121 n.1 (3d Cir. 2013).
Plaintiff filed her Complaint in this Court on August 11, 2021. [Doc. 1.] On November 22, 2021, Caldwell filed a motion to dismiss Plaintiff's First Amendment retaliation claim. [Doc. 13.] Plaintiff filed a response on December 26, 2021. [Doc. 28.] The motion is now ripe for review.
The facts in the Background section are taken directly from Plaintiff's Complaint [Doc. 1].
Plaintiff, an African-American female, began employment with the Space and Naval Warfare Systems Center of the Department of the Navy on August 8, 2016, as a Sensitive Compartmented Information, Personnel Security Lead. [Doc. 1 ¶¶ 13, 22.] On her first day, Plaintiff met with Caldwell and Willie Cantrell, who were her second-level and first-level supervisors. [Id. ¶ 23, 25.] During the meeting, Caldwell told Plaintiff that “she was lucky to have [the] job” and that he had not intended to hire her because he did not generally hire retired Chief Petty Officers nor did he entertain counter-offers. [Id. ¶ 25.] Following the meeting, Plaintiff was “visibly upset” and she informed Cantrell of Caldwell's comments and that she felt threatened and intimidated by Caldwell's behavior during the meeting. [Id. ¶ 26.]
As part of her duties, Plaintiff attended bi-weekly security meetings with security team members, including Cantrell and Caldwell. [Id. ¶ 27.] During one such meeting very early in her employment, she complained to Caldwell that she was having problems with one of her coworkers, Mary Bowen, who had been rude and disrespectful. [Id. ¶ 28.] Plaintiff believed that Bowen's animus toward her was because Bowen's friend had applied for the same position for which Plaintiff was hired. [Id.]
After Plaintiff was given her security clearance, Bowen refused to provide Plaintiff with material she needed to perform her employment duties. [Id. ¶ 30.] On several occasions, Plaintiff had to seek help from Cantrell to have Bowen provide the material she needed. [Id.] Over several months, Plaintiff reported Bowen's unprofessional behavior to Cantrell and Caldwell multiple times, including Bowen's refusal to grant Plaintiff access to the security material that she needed. [Id. ¶¶ 30-31,33-34, 36-37, 40-41.] During her employment, Plaintiff also protested Caldwell's treatment of another employee, Cristina Gillaspie. [Id. ¶ 135.]
In July 2017, Plaintiff was informed that she was hired because the office had not recently hired an African American. [Id. ¶ 45.] Plaintiff was also subjected to comments from other coworkers about her race and her children's race, as well as discriminatory remarks about African Americans from other people in her office. [Id. ¶ 46.]
Plaintiff met with the Equal Employment Opportunity (“EEO”) office concerning the issues she was experiencing in the workplace, including discrimination, hostile work environment, and retaliation. [Id. ¶ 49.] She did not file an informal complaint at that time. [Id. ¶ 51.] Nonetheless, Cantrell and the other employees in her office knew that Plaintiff had met with the EEO office to complain. [Id. ¶ 49-50.]
After Plaintiff met with the EEO office, Cantrell gave her a letter of counseling and disciplined her for offensive language in the workplace on June 29, 2017; disruptive behavior in the workplace on July 17, 2017; and having her spouse in a secure area on July 14, 2017. [Id. ¶ 52.] As a result, Plaintiff informed Cantrell that she would be filing a complaint with the EEO office and that she would resign because of the hostile work environment and other discrimination she had been subjected to. [Id. ¶¶ 53-54.] Cantrell urged Plaintiff not to resign. [Id. ¶ 54.]
On July 19, 2017, Plaintiff was on leave, and she received a call informing her that her security access had been suspended. [Id. ¶¶ 55-56.] Cantrell then called her and advised her that he had been directed to suspend her security access although he had been “unequivocally opposed” to doing so. [Id. ¶ 56.] The next day, the Navy notified Plaintiff via letter that her security clearance had been locally removed. [Id. ¶ 57.] Plaintiff questioned Cantrell about why he had not followed standard procedures regarding removing her security access, and he informed her that it was Caldwell who had determined Plaintiff was not permitted in the Secured Compartment Information Facility (“SCIF”). [Id. ¶ 59.] However, later that day Cantrell allowed Plaintiff to enter the SCIF to suspend her clearance. [Id.] Plaintiff's employment was terminated on July 28, 2017, in retaliation for her EEO Complaint. [Id. ¶ 60.]
On October 3, 2017, Plaintiff filed a formal complaint with the EEO alleging race and sex discrimination, reprisal, and hostile work environment. [Id. ¶ 12.] The Agency issued a final order on December 26, 2019, finding no discrimination. [Doc. 1-1 at 1.] Then Plaintiff appealed to the EEOC, which issued a final agency decision denying Plaintiff's claims on July 19, 2021. [Docs. 1 ¶ 17; 1-1.]
Plaintiff filed this action on August 11, 2021. [Doc. 1.] She alleges three Title VII claims-for discrimination, retaliation, and hostile work environment and a First Amendment retaliation claim. [Id. ¶¶ 90-140.] She seeks money damages and equitable relief, attorneys' fees, and court costs. [Id. at 20.]
APPLICABLE LAW
Requirements for a Cause of Action Under Bivens
In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violation of federal constitutional rights. 403 U.S. at 389. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); Mitchell v. Forsyth, 511 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988). To establish a claim under Bivens, a plaintiff must prove two elements: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. See Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 (“In [a previous case], we reserved the question whether violation of [the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.”).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557; see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
DISCUSSION
Caldwell argues that he is entitled to dismissal of Plaintiff's First Amendment retaliation claim against him because it is barred by the statute of limitations. [Doc. 13 at 5-6.] The Court agrees.
As the Fourth Circuit has explained:
Ordinarily, a defense based on the statute of limitations must be raised by the defendant through an affirmative defense, and the burden of establishing the affirmative defense rests on the defendant. It follows, therefore, that a motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred. But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the
affirmative defense “clearly appear[] on the face of the complaint.”Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc) (alteration in original, citations omitted).
By asserting a claim against Caldwell in his individual capacity for retaliation for exercise of her constitutional rights, Plaintiff has asserted a claim pursuant to Bivens. See Bivens, 403 U.S. at 389. There is no federal statute of limitations for a Bivens action. Owens v. Okure, 488 U.S. 235, 239-41 (1989). Rather, a Bivens action is governed by the state statute of limitations for general personal injury cases in the state where the alleged violation occurred. Id.; see also Hoffman v. Tuten, 446 F.Supp.2d 455, 459 (D.S.C. 2006). The statute of limitations for such causes of action arising in South Carolina is three years. See S.C. Code Ann. §§ 15-3-530(5), 15-3-535; see also Hoffman, 446 F.Supp.2d at 460 (“It is well established that the South Carolina statute of limitations most analogous to this Bivens action is the three-year statute of limitations governing personal injury actions.”).
Although state statutes of limitations dictate the limitations period, federal law dictates when the cause of action accrues. Wallace v. Kato, 549 U.S. 384, 387 (2007). Under federal law, a cause of action accrues “when the plaintiff possesses sufficient facts about the harm done to [her] that reasonable inquiry will reveal [her] cause of action.” Nasim v. Warden Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995).
Plaintiff alleges Caldwell retaliated against her for exercising her right to free speech when he “went out of his way [to] terminate . . . Plaintiff for false allegations.” [Doc. 1 ¶ 138.] Based on Plaintiff's allegations, Plaintiff's cause of action accrued no later than the date she was terminated, July 28, 2017. Plaintiff was thus required to file a cause of action within three years of that date. Because Plaintiff did not file suit until more than four years after that date, the Court recommends that Caldwell's motion to dismiss be granted as to this claim.
Plaintiff does not dispute that the facts alleged in her Complaint show that, on the date of her termination, she possessed information that was sufficient that a reasonable inquiry would have revealed her cause of action. Her only argument that her First Amendment retaliation claim is not time-barred is that she has continued, even up through the filing of her Complaint, to suffer additional ill effects from her retaliatory termination. [Doc. 28 at 12.] However, that Plaintiff has continued to suffer ill effects of the complained-of action does not affect the limitations analysis. See A Society Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (“[C]ontinual unlawful acts are distinguishable from the continuing ill effects of an original violation because the latter do not constitute a continuing violation.”). Finally, although Plaintiff cites Hernandez v. Mesa, 140 S.Ct. 735, 736 (2020), in support of her argument that her claims are not time barred [Doc. 28 at 12], Plaintiff does not explain how she believes Hernandez supports her argument, and the Court sees no reason that it has any applicability.
Because the Court concludes that Plaintiff's claim against Caldwell is time barred, the Court declines to address Caldwell's alternative arguments.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Caldwell's motion to dismiss [Doc. 13] be GRANTED.
Caldwell asserts that he is not named as a defendant in his individual capacity with regard to the other three claims. [Doc. 13 at 5.] And it is well settled that Title VII does not impose individual liability on supervisory employees. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998) (holding that supervisors cannot be found liabile in their individual capacity under Title VII because they do not fit within the definition of an employer); Wright v. Stonemor Partners LLP, No. 3:12-cv-380, 2012 WL 4006120, at *1-2 (W.D. N.C. Sept. 12, 2012). Accordingly, the Court recommends that Caldwell be dismissed from this action.
IT IS SO RECOMMENDED.