Long v. Mcdonald

MOTION to Dismiss for Lack of Jurisdiction

E.D. Okla.August 9, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA JEROME LONG, ) ) Case No. 16-cv-209-RAW Plaintiff, ) vs. ) ) ROBERT A. MCDONALD, ) SECRETARY, DEPARTMENT OF ) VETERAN AFFAIRS, ) ) Defendant. ) UNITED STATES OF AMERICA’S MOTION TO DISMISS AND BRIEF IN SUPPORT COMES NOW the Defendant, Robert A. McDonald, Secretary, Department of Veteran’s Affairs (the “United States”), by and through Mark F. Green, United States Attorney for the Eastern District of Oklahoma, and Michael J. Cooper, Assistant United States Attorney, and submits his Motion to Dismiss Plaintiff’s Amended Complaint [Dkt. #4] for lack of subject matter jurisdiction. In support, the United States would show the Court as follows: INTRODUCTION Plaintiff filed his Amended Complaint on May 26, 2016 alleging he was terminated from his position as a physician with the United States or otherwise discriminated against on the basis of his race. Seeking remedies for such alleged discrimination, Plaintiff asserts a sole cause of action in the Amended Complaint under 42 U.S.C. § 1981. See Dkt. #4 at ¶¶ 1, 37-41. Plaintiff has not asserted any other cause of action for statutory or common law claims. In the Complaint, Plaintiff alleges he entered into a Last Chance Agreement with the United States governing the conditions of his continued employment with the United States on November 8, 2013. See Dkt. #4 at ¶¶ 9-13. Plaintiff further alleges the Last Chance Agreement contained certain contractual 6:16-cv-00209-RAW Document 20 Filed in ED/OK on 08/09/16 Page 1 of 7 2 provisions whereby he agreed to “waive any and all rights to grieve, appeal or pursue any administrative or legal action, including EEO complaints or discrimination complaints, relating to this agreement including the reinstatement of your discharge should a violation of this agreement occur.” See Dkt. #4 at ¶ 13. On November 19, 2014, Plaintiff alleges he was terminated after being presented with a discharge letter by the United States identifying a litany of bases for the termination. See Dkt. #4 at ¶¶ 14-30. Plaintiff admits in his Amended Complaint that he failed to pursue an appeal of his termination or seek administrative remedies through an EEO claim for any alleged discrimination as a result of his entry into the Last Chance Agreement. See Dkt. #4 at ¶ 34. In the Amended Complaint, Plaintiff vaguely alleges the United States violated 42 U.S.C. § 1981 and discriminated against him as an African American, although the nexus between the discriminatory conduct and his termination are unclear. However, on the face of the Amended Complaint, Plaintiff has failed to assert allegations sufficient to grant this Court subject matter jurisdiction over his claims. Therefore, the Amended Complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1). ARGUMENTS AND AUTHORITIES I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S AMENDED COMPLAINT AS THE UNITED STATES HAS NOT WAIVED SOVEREIGN IMMUNITY FOR CLAIMS ASSERTED UNDER 42 U.S.C. § 1981. “The United States, as a sovereign, is immune from suit save as it consents to be sued…, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain that suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980). Any waiver of sovereign immunity must be unequivocally expressed and may not be inferred. Strong-Fisher v. LaHood, 611 F.Supp.2d 49, 52-53 (D.C. Cir. 2009). Here, Plaintiff’s suit seeks damages from the Secretary of the Department of Veteran’s Affairs that would be paid from the public treasury, 6:16-cv-00209-RAW Document 20 Filed in ED/OK on 08/09/16 Page 2 of 7 3 and his action must be construed as a suit against the United States. Id. at 53. See also Turner v. Shinseki, 824 F.Supp.2d 99, 112-13 (D.C. Cir. 2011). Therefore, Plaintiff carries the burden of establishing a waiver of the United States’ sovereign immunity. Id. This he cannot do for a claim under 42 U.S.C. § 1981. The Supreme Court has unequivocally held that Title VII of the Civil Rights Act of 1964 “provides the exclusive judicial remedy for claims of discrimination in federal employment.” Brown v. General Services Administration, 425 U.S. 820, 835 (1976). See also Strong-Fisher, 611 F.Supp.2d at 53; Williams v. Bentsen, 1993 WL 469110, *1 (D.C. Cir. Nov. 5, 1993)(“[I]t is well established that Title VII provides the exclusive judicial remedy for claims of discrimination in federal employment.”). Due to the exclusivity of this remedy, “claims covered by Title VII may not be brought under other federal statutes, including 42 U.S.C. § 1981.” Strong-Fisher, 611 F.Supp.2d at 53 (emphasis added). See also Turner v. Shinseki, 824 F.Supp.2d at 113. This is further supported by § 1981’s plain language, which protects individual rights “against impairment by nongovernmental discrimination and impairment under color of State law.” See 42 U.S.C. § 1981(c) (emphasis added). Thus, “§ 1981 does not apply to actions taken under color of federal law” and does not apply to claims made against federal representatives acting in their official capacities. Davis v. United States Department of Justice, 204 F.3d 723, 725 (7th Cir. 2000). In this case, Plaintiff’s Amended Complaint arguably alleges federal employees committed discrimination on the basis of his race. Thus, the alleged discriminatory actions for which Plaintiff seeks redress all took place under color of federal law and are not actionable under § 1981. Because Title VII of the Civil Rights Act of 1964 is the exclusive remedy for Plaintiff’s claims alleging discrimination in his federal employment, this Court lacks subject 6:16-cv-00209-RAW Document 20 Filed in ED/OK on 08/09/16 Page 3 of 7 4 matter jurisdiction over the § 1981 claims asserted in his Amended Complaint. Therefore, the Amended Complaint must be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). II. THE AMENDED COMPLAINT MUST BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION DUE TO THE FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. As discussed above, Plaintiff’s exclusive remedy for the alleged discrimination falls under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e, et seq. However, any leave to amend Plaintiff’s Amended Complaint to transform the claim into an action under Title VII will be futile, as the Complaint remains subject to dismissal for Plaintiff’s failure to exhaust his administrative remedies. It is well-settled law that a plaintiff must timely pursue his administrative remedies before filing a civil action under Title VII. Brown v. General Services Administrative, 425 U.S. 820, 832 (1975); Johnson v. United States Postal Service, 861 F.2d 1475, 1477-1478 (10th Cir. 1988). “Exhaustion of administrative remedies is a jurisdictional prerequisite to instituting a Title VII action in federal court.” Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir. 1997) (citations and quotations omitted). In order to exhaust administrative remedies, an employee must timely contact an Equal Employment Opportunity Counselor/Investigator and file an administrative complaint of discrimination. The exhaustion of administrative remedies under EEOC regulations involves a two-step process. Under 29 C.F.R. §1614.105(a)(1), the complainant must initiate contact with an EEO counselor within 45 calendar days of the date of the alleged discriminatory act or, if a personnel action, within 45 calendar days of its effective date. Under 29 C.F.R. §1614.106, a written complaint must be filed with the agency that allegedly discriminated against the complainant within 15 calendar days of receipt of the notice of final interview. There is no doubt that the regulations require aggrieved persons to timely 6:16-cv-00209-RAW Document 20 Filed in ED/OK on 08/09/16 Page 4 of 7 5 consult with a counselor and file an administrative claim. These conditions must be satisfied in order for the agency to process the complaint under EEOC regulations. Castorena v. Runyon, No. 92-1456-PFK, 1994WL146343 (D.Kan. Apr. 4, 1994); Johnson v. Orr, 747 F.2d 1352, 1357 (10th Cir. 1984). Federal courts lack jurisdiction to review Title VII claims that are not part of a timely- filed EEOC charge.” McDonald-Cuba v. Santa Fe Prot. Servs., Inc., 644 F.3d 1096, 1101 (10th Cir.2011) (internal quotation marks omitted); see also Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir.2007) (describing jurisdictional nature of exhaustion requirement). “A plaintiff's claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Jones, 502 F.3d at 1186 (alteration and internal quotation marks omitted). In his Amended Complaint, Plaintiff admits he did not appeal his discharge from employment with the United States or seek to file an EEO complaint. See Dkt. #4 at ¶ 34. Further, Plaintiff did not contact an EEO counselor within 45 days of the alleged discriminatory events or termination of his employment. Thus, any Title VII claims which may be asserted by Plaintiff in an Amended Complaint will be barred because he failed to bring them to the attention of the VA Office of Resolution Management within 45 days as required by regulation. See 29 C.F.R. §1614.105(a)(1). Plaintiff blames this failure on the terms of the Last Chance Agreement he entered into with the United States. See Dkt. #4 at ¶ 34. However, the law provides an unequivocal requirement that Plaintiff seek to address alleged discriminatory acts through the administrative process prior to filing a claim under Title VII. Plaintiff has not alleged he entered into the Last Chance Agreement as a result of fraud or duress and his contractual waiver of such 6:16-cv-00209-RAW Document 20 Filed in ED/OK on 08/09/16 Page 5 of 7 6 claims is valid and lawful. Plaintiff cannot excuse the failure to exhaust his administrative remedies by pointing to the terms of the Agreement. As Plaintiff failed to exhaust the required administrative remedies prior to filing his suit, this Court should bar any amendment to the Amended Complaint. Any attempt to transform the Amended Complaint into an action under Title VII would be futile, as the claims are subject to dismissal for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1). III. THE COMPLAINT MUST BE DISMISSED FOR PLAINTIFF’S FAILURE TO OBTAIN PROPER SERVICE. Fed.R.Civ.P. 4(c) requires a plaintiff to serve a copy of the Complaint with a summons to properly initiate an action. When serving process on the United States for claims related to a governmental agency’s actions, a plaintiff is required to serve the summons and Complaint on the particular government agency, the United States Attorney’s office for the district in which the suit is filed and the Attorney General of the United States. See Fed.R.Civ.P. 4(i)(1)(A-B). While Plaintiff has achieved proper service on the United States Attorney’s Office for the Eastern District of Oklahoma in this case, he has failed to achieve service on the Department of Veteran’s Affairs. No return of service has been submitted to the Court and no evidence exists to suggest complete and proper service of the Amended Complaint on the Defendant has been achieved. Accordingly, Plaintiff’s Amended Complaint should be dismissed for failure to effect proper service required by Fed.R.Civ.P. 4. CONCLUSION Title VII of the Civil Rights Act of 1964 is the exclusive remedy for the factual allegations contained in Plaintiff’s Amended Complaint and this Court lacks subject matter jurisdiction to hear Plaintiff’s cause of action submitted under 42 U.S.C. § 1981. Any attempt to amend the Amended Complaint to assert a cause of action under Title VII is futile, as Plaintiff 6:16-cv-00209-RAW Document 20 Filed in ED/OK on 08/09/16 Page 6 of 7 7 has failed to exhaust the available administrative remedies. Accordingly, this Court lacks subject matter jurisdiction to adjudicate any of the claims based on the factual allegations contained in Plaintiff’s Amended Complaint. Further, Plaintiff has failed to effectuate proper service on the United States and his Amended Complaint must be dismissed under Fed.R.Civ.P. 4. WHEREFORE, premises considered, the United States respectfully prays this Court dismiss Plaintiff’s Amended Complaint with prejudice, that Plaintiff take nothing by way of his Amended Complaint and that this Court award any further relief it deems just and proper. Respectfully submitted, MARK F. GREEN United States Attorney s/ Michael J. Cooper Michael J. Cooper, O.B.A. #22531 Assistant United States Attorney 520 Denison Avenue Muskogee, OK 74401 (918) 684-5113 - telephone (918) 684-5130 - fax Michael.Cooper3@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that on August 9, 2016, I electronically filed the foregoing with the Clerk of Court using the ECF System. Based on the records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF registrant: Jean Walpole Coulter Attorney for Plaintiff, email: Jeancoult@aol.com. s/ Michael J. Cooper Michael J. Cooper Assistant U.S. Attorney 6:16-cv-00209-RAW Document 20 Filed in ED/OK on 08/09/16 Page 7 of 7