Chandra v. Bowhead Science & Technology Llc et al

Brief/Memorandum in Support

N.D. Tex.February 21, 2017

Brief in Support of Defendant Robert M. Speer’s Motion to Dismiss – Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION __________________________________________________ DIPANKAR CHANDRA, § § Plaintiff, § § v. § Civil Action No.: 3:16-cv-0375B § BOWHEAD SCIENCE & § TECHNOLOGY, LLC., § ROBERT M. SPEER, SECRETARY § OF THE UNITED STATES ARMY, § § Defendants. § BRIEF IN SUPPORT OF DEFENDANT ROBERT M. SPEER’S MOTION TO DISMISS Dr. Dipankar Chandra (Chandra) filed his complaint in this action on February 10, 2016. See Complaint, Doc. No. 1. In his complaint, Chandra asserts claims of discrimination on the basis of race and national origin against Bowhead Science & Technology, LLC and the United States Army, for discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964. Chandra failed to exhaust his administrative remedies with respect to his claims against the United States Army. Notably, Chandra did not file his formal complaint with the agency, nor did he make contact with the agency within 45 days of the alleged incidents of discrimination. Therefore, all claims of discrimination that plaintiff has alleged against the Army must be dismissed for lack of subject matter jurisdiction and/or in the alternative, for failure to state a claim. Case 3:16-cv-00375-B Document 34 Filed 02/21/17 Page 1 of 8 PageID 185 Brief in Support of Defendant Robert M. Speer’s Motion to Dismiss – Page 2 I. Factual Background/Procedural History Defendant believes that Dr. Dipankar Chandra was hired as an employee of Bowhead Science & Technology, LLL (an entity that is associated as a contractor with the United States Army). On August 7, 2012, Dr. Chandra filed an “EEOC Charge of Discrimination” charge against Bowhead. Exhibit No. 1. Chandra did not file a claim of discrimination with the agency, nor did Chandra contact an officer at the agency’s EEO office to report a claim as required by 42 U.S.C. § 2000e-16(c). See Exhibit No. 4. II. Argument and Authorities A. Standards of Review for Dismissal Under Rule 12(b)(1) and (6) i. Plaintiff’s Claims Against the United States Army Should be Dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for Lack of Subject Matter Jurisdiction An essential prerequisite to the court's jurisdiction over a discrimination claim in the federal sector is the initial presentation of the claim to the agency. Federal employees asserting discrimination claims must exhaust their administrative remedies as a precondition to filing a civil action in federal district court. See Brown v. General Services Admin., 425 U.S. 820, 832 (1976); Watkins v. Lujan, 922 F.2d 261, 263 (5th Cir. 1991) (citing Brown, supra). Title VII vests the EEOC with the responsibility to promulgate regulations implementing and enforcing the employment discrimination provisions for federal employees. 42 U.S.C. § 2000e-16(b). The regulations in 29 C.F.R. § 1614.101 et seq. set forth the administrative remedies to be pursued in suits alleging employment discrimination in federal employment. The rules for pursuing a complaint are not mere Case 3:16-cv-00375-B Document 34 Filed 02/21/17 Page 2 of 8 PageID 186 Brief in Support of Defendant Robert M. Speer’s Motion to Dismiss – Page 3 technicalities, but integral parts of Congress’ statutory scheme of achieving a “careful blend of administrative and judicial enforcement powers.” Brown, 425 U.S. at 833 (discussing the systemic efficiency and necessity of exhausting administrative remedies before proceeding to court). The prescribed administrative remedies are mandatory and in Brown, the Supreme Court wrote: Section 717(c) permits an aggrieved employee to file a civil action in a federal district court to review his claim of employment discrimination. Attached to that right, however, are certain preconditions. Initially, the complainant must seek relief in the agency that has allegedly discriminated against him. 425 U.S. at 832 (emphasis added). The Fifth Circuit Court of Appeals has upheld the requirement that administrative remedies must be exhausted prior to institution of a civil action. Munoz v. Aldridge, 894 F.2d 1489, 1493 (5th Cir. 1990) (citing Brown, supra); Anderson v. Lewis Rail Service Co., 868 F.2d 774, 775 (5th Cir. 1989) (“[i]n this circuit a district court may consider only those grounds of a Title VII complaint that were raised in the administrative process”) (citation omitted). In Johnson v. Bergland, 614 F.2d 415, 417-18 (5th Cir. 1980), the Circuit Court quoted with approval the following language from the district court's order dismissing a Title VII suit: The administrative complaint procedures must be complied with. If they are, and an adverse decision is rendered on the merits of a complaint, then a complainant is entitled to a de novo hearing in federal court. However, if the agency does not reach the merits of the complaint because the complainant fails to comply with the administrative procedures the Court should not reach the merits either. Otherwise, the complainant might be dilatory at the administrative level, knowing that he can get into federal court anyway. Id. Case 3:16-cv-00375-B Document 34 Filed 02/21/17 Page 3 of 8 PageID 187 Brief in Support of Defendant Robert M. Speer’s Motion to Dismiss – Page 4 In this instant case, plaintiff sought relief with Bowhead and filed his claim of discrimination with the EEOC (as opposed to filing a claim with the Army’s EEO office). See Exhibits No. 1; No. 2; and No. 3. Plaintiff did not seek relief with the Army, nor did he follow the requisite procedures set forth by Congress for pursuing claims alleging employment discrimination in federal employment. And for plaintiff’s failure to exhaust his administrative remedies on these claims against the Army, they should be dismissed for a lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). See also Randel v. U.S. Dept. of Navy, 157 F.3d 392, 395 (5th Cir. 1998) (holding that the court lacks jurisdiction if a plaintiff has failed to exhaust his administrative remedies as to each separate and distinct claim of discrimination). ii. Plaintiff’s Claims Against the United States Army Should be Dismissed Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim It is accurate that matters outside the pleadings may not be considered in a Rule 12(b)(6) motion to dismiss. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). However, the Fifth Circuit Court of Appeals has held that “when considering a Rule 12(b)(6) motion, a court may consider documents outside the complaint when they are: (1) attached to the motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.” Maloney Gaming Mgmt., L.L.C. v. St. Tammany Parish, 456 Fed. Appx. 336, 338 (5th Cir. 2011). See In Re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (finding consideration of insurance contracts unattached to the complaint permissible where they were attached to the motions to dismiss, referred to in the complaint, and central to the plaintiffs’ claims (emphasis added)); see also Tellabs, Case 3:16-cv-00375-B Document 34 Filed 02/21/17 Page 4 of 8 PageID 188 Brief in Support of Defendant Robert M. Speer’s Motion to Dismiss – Page 5 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2008) (directing courts to “consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice”) (citing 5B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 1357 (3d ed. 2004 & Supp. 2007)); Causey v. Sewell Cadillac- Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); Kane Enters. v. MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir. 2003). Plaintiff’s complaint cites to a “notice of right to sue” that was issued to plaintiff from the “Equal Employment Opportunity Commission (EEOC).” See Complaint, Doc. No. 1, para 12. Although plaintiff refers to this notice in support of his allegations that he exhausted his administrative remedies and satisfied all perquisites to the instant litigation; plaintiff did not supply a copy of the notice from the EEOC with the filing of his complaint. Furthermore, Plaintiff stated that “[a]ll conditions precedent to filing this cause of action have been met.” See Complaint, Doc. No. 1, para 11. And as it is well established that exhaustion of administrative remedies is a required “condition precedent” to the filing of a civil suit asserting claims of employment discrimination pursuant to Title VII; a document that either verifies or contradicts plaintiff’s exhaustion (that he categorically referred to in paragraph 11 of the complaint) is necessarily central to his claim. See Brown v. General Services Administration, 425 U.S. 820, 832 (1976) (holding that federal employees asserting discrimination claims must exhaust their administrative Case 3:16-cv-00375-B Document 34 Filed 02/21/17 Page 5 of 8 PageID 189 Brief in Support of Defendant Robert M. Speer’s Motion to Dismiss – Page 6 remedies as a precondition to filing a civil action in federal district court); 42 U.S.C. § 2000e-16(c). In consideration of plaintiff’s allegations contained in paragraphs 11 and 12 of the complaint, the following documents (that are referred to in plaintiff’s complaint, but were not attached to plaintiff’s complaint) have been submitted with this motion and are identified as the following exhibits: (1) the “EEOC Charge of Discrimination” that Dr. Chandra filed on August 7, 2012 against Bowhead (Exhibit No. 1); (2) the “Notice of Charge of Discrimination” issued from the EEOC to Bowhead on January 8, 2013 (Exhibit No. 2); (3) the “Dismissal and Notice of Rights” issued from the EEOC to Dr. Chandra on November 12, 2015 (Exhibit No. 3); and (4) a declaration from the EEO officer, dated February 17, 2017, certifying that Plaintiff never filed a claim of discrimination with the agency nor did Plaintiff ever contact an officer at the EEO office to report a claim as required by 42 U.S.C. § 2000e-16(c) (Exhibit No. 4). As plaintiff’s claims against the Army are undoubtedly controlled by exhaustion, the four documents attached to this motion are central to plaintiff’s claims and therefore, the court is permitted to consider them without converting the motion to dismiss into one for summary judgment. See Maloney Gaming Mgmt., L.L.C. v. St. Tammany Parish, 456 Fed. Appx. 336, 338 (5th Cir. 2011), citing In Re Katrina Canal Breaches Litig., 495 F.3d at 205. Chandra alleges that he was subject to discrimination on the basis of his race and national origin. Chandra also alleges that he satisfied all requisite conditions precedent and that he was issued a right to sue notice. However, as evidenced by plaintiff’s formal Case 3:16-cv-00375-B Document 34 Filed 02/21/17 Page 6 of 8 PageID 190 Brief in Support of Defendant Robert M. Speer’s Motion to Dismiss – Page 7 complaint of discrimination filed on August 7, 2012 against Bowhead (Exhibit No. 1), plaintiff filed his charge of discrimination with the EEOC (and not the Army’s EEO office) and identified Bowhead (not the Army) as the respondent for those claims. Federal employees wishing to file suit under Title VII must clear two administrative hurdles: they must first consult an agency EEO counselor, after which they must file a formal complaint with the EEO office of the agency. See 29 CFR §§ 1614.105-106; Pacheco v. Mineta, 448 F.3d 783, 786-88 (5th Cir. 2006); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002). Because plaintiff did not consult with an agency EEO counselor and/or because he did not file a formal complaint with the EEO office of the agency, the Court must dismiss the Title VII claims that plaintiff has brought against the Army. Plaintiff cannot state a claim against the Army for discrimination under Title VII without exhaustion of the administrative remedies set forth by Congress. See Pacheco, 448 F.3d at 787-88; 42 U.S.C. § 2000e-16(c). See also Grost v. United States, 2014 U.S. Dist. LEXIS 61608, 46-48 (W.D. Tex. 2014) III. Conclusion Plaintiff failed to exhaust his administrative remedies as to any claims of discrimination against the Army. Given his failure to exhaust his administrative remedies, this Court lacks subject matter jurisdiction over those claims and they should be dismissed. Consequently, the Army respectfully requests: i) that any discrimination claims that plaintiff raised against the Army in his complaint should be dismissed for failure to exhaust administrative remedies; ii) that the Army should be dismissed as a party from Case 3:16-cv-00375-B Document 34 Filed 02/21/17 Page 7 of 8 PageID 191 Brief in Support of Defendant Robert M. Speer’s Motion to Dismiss – Page 8 this litigation entirely with prejudice and with costs, and for such other and further relief as this Court deems just and proper. Respectfully submitted, JOHN R. PARKER UNITED STATES ATTORNEY /s/ Mattie Peterson Compton Mattie Peterson Compton Assistant United States Attorney Burnett Plaza – Suite 1700 801 Cherry Street – Unit # 4 Fort Worth, TX 76102-6882 Texas Bar No. 04652300 Phone: 817-252-5200 Mattie.Compton@usdoj.gov CERTIFICATE OF SERVICE This will certify that a true and correct copy of the foregoing was filed with the Court via CM/ECF on February 21, 2017, and that the CM/ECF system electronically notified all counsel of record who are deemed to have consented to electronic service. On this same date, Plaintiff, Pro Se¸ Dipankar Chandra was sent a true and correct copy of the foregoing document to his address of record: Dipankar Chandra Pro Se 1200 Jupiter Road - #941147 Plano, Texas 75094 /s/ Mattie Peterson Compton Mattie Peterson Compton Case 3:16-cv-00375-B Document 34 Filed 02/21/17 Page 8 of 8 PageID 192