Opinion
5:23-CV-587-M-KS
07-11-2024
MICHAEL MCNAIR, Plaintiff, v. TSA, TOMEIKA BLACKWELL, TASHA DIXON, and MIGUEL HERRERA, Defendants.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This pro se civil action is before the court on Defendants' motion to dismiss [DE #4] and motion to stay discovery [DE #8], with Plaintiff having responded in opposition to each motion [DE ##12, 13]. Where this matter has been referred to the undersigned by the Honorable Richard E. Myers II, Chief United States District Judge, and the parties have not consented to the jurisdiction of the magistrate judge, Defendants' motions are undertaken pursuant to 28 U.S.C. § 636(b)(1)(B) for memorandum and recommendation. For the reasons explained below, it is recommended that Defendants' motion to dismiss for lack of subject-matter jurisdiction be granted and the motion to stay discovery dismissed as moot.
BACKGROUND
This is a pro se action initiated in state court on September 18, 2023, by an employee of the Transportation Security Administration (TSA) against TSA and three named TSA employees. (Compl. [DE #1-1].) Although Plaintiff's Complaint makes no explicit reference to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Plaintiff expressly complains that Defendants created a hostile work environment by mistreating him during an investigation by TSA into alleged workplace misconduct by Plaintiff in August 2022. (Id. at 3-4.) More specifically, Plaintiff, who works for TSA at Raleigh-Durham International Airport, was notified in early September 2022 about a stalking complaint made against him by an employee of a Starbucks coffee shop at Raleigh-Durham International Airport and was placed on work restriction from September 8, 2022, through December 28, 2022, at which time he was notified by TSA that he had been cleared of wrongdoing and was allowed to return to normal duty. (Id.) During the period of work restriction occurring contemporaneously with TSA's investigation, Plaintiff states he was required to sit in the break room for the entirety of his 8-hour shift, denied the ability to work overtime shifts, ostracized by coworkers-“especially female coworkers,” and suffered adverse physical and psychological consequences due to the work restriction. (Id.)
Individuals cannot be liable under Title VII. Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998).
On October 18, 2023, Defendants removed the case to federal court pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. (Defs.' Notice Removal [DE #1] at 1.) Less than a week later, Defendants moved to dismiss for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), insufficient process pursuant to Fed.R.Civ.P. 12(b)(4), insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5), and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Defs.' Mot. Dismiss [DE #4]; Defs.' Mem. Supp. Mot. Dismiss [DE #5].) On December 14, 2023, Plaintiff responded in opposition to the motion to dismiss. (Pl.'s Resp. Opp'n Mot. Dismiss [DE #12].)
Section 1442(a)(1) is the substantive basis for removing a case against the United States, a federal agency, or federal officers from state court; Section 1446 describes the procedure for removing such a case.
On October 30, 2023, Defendants moved to stay discovery pending resolution of the motion to dismiss. (Defs.' Mot. Stay Discovery [DE #8]; Defs.' Mem. Supp. Mot. Stay Discovery [DE #9].) On December 15, 2023, Plaintiff responded in opposition to the motion to stay discovery. (Pl.'s Resp. Opp'n Mot. Stay Discovery [DE #13].)
DISCUSSION
I. Standard of Review
A. Rule 12(b)(1) Motion
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges subject-matter jurisdiction. “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless the contrary is shown. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895).
“When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), ‘the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). If the material jurisdictional facts are not in dispute, and the moving party is entitled to judgment as a matter of law, then the court should grant the Rule 12(b)(1) motion to dismiss. Evans, 166 F.3d at 647. A dismissal for lack of subjectmatter jurisdiction should be without prejudice. S. Walk at Broadlands Homeowners' Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
B. Rule 12(b)(4) and Rule 12(b)(5)
A motion to dismiss under Rule 12(b)(4) challenges the sufficiency of process, while a motion under Rule 12(b)(5) challenges the sufficiency of service of process. See Fed.R.Civ.P. 12(b)(4), (b)(5). ‘When the process gives the defendant actual notice of the pendency of the action, the rules . . . are entitled to a liberal construction” and “every technical violation of the rule or failure of strict compliance may not invalidate the service of process.' Armco, Inc. v. Penrod-Stauffer Bldg. Sys. Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). However, even when the defendant has actual notice of the action, ‘the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored.' Id. The plaintiff bears the burden of establishing that process has been properly served. Dalenko v. Stephens, 917 F.Supp.2d 535, 542 (E.D. N.C. 2013); see also Mylan Labs, Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993) (holding that plaintiff must prove service of process if challenged). ....
Service of process in a federal action is covered generally by Rule 4 of the Federal Rules of Civil Procedure.... Since the sufficiency of process and service of process concern the court's jurisdiction, consideration of materials outside the pleadings, such as affidavits, is appropriate. Freeman v. HKA Enters. of S.C., LLC, No. 4:21-CV-77-FL, 2022 WL 3705020, at *3 n.7 (E.D. N.C. Aug. 26, 2022) (citing Dimet Proprietary, Ltd. V. Indus. Metal Protectives, 109 F.Supp. 472, 475 (D. Del. 1952)).Morgan v. Towne Properties, LLC (NC), No. 5:23-CV-17-M, 2023 WL 9610709, at *3, 8 (E.D. N.C. Dec. 6, 2023), mem. & recommendation adopted by 2024 WL 418625 (E.D. N.C. Feb. 5, 2024).
C. Rule 12(b)(6) Motion
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint or any claims contained therein that fail to state a claim upon which relief can be granted. The intent of the rule is to test the sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The court assumes the truth of all facts alleged in the complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and “draw[s] all reasonable inferences in favor of the plaintiff,” Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (quoting King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)).“‘The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'” Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). While pro se complaints should be liberally construed, they are not exempt from the “requirement that a pleading contain ‘more than labels and conclusions.'” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, a court does not “act as an advocate for a pro se litigant,” Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978), nor is it required to “‘discern the unexpressed intent of the plaintiff[.]'” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013) (quoting Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006) (en banc)).
A complaint will survive a 12(b)(6) motion to dismiss only if it alleges facts that raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. It need not contain detailed factual allegations, but it must give a defendant fair notice of what the claim is and the grounds upon which it rests. Id.; see also Fed.R.Civ.P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”). A “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations,” which are sufficient to raise a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Facial plausibility is more than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. It requires the plaintiff to articulate facts “that allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“In order to file a Title VII claim of discrimination against the federal government, a plaintiff must first exhaust his administrative remedy.” Lowe v. Del Toro, No. 4:22-CV-127-BO, 2023 WL 5672827, at *2 (E.D. N.C. Sept. 1, 2023) (first citing 42 U.S.C. § 2000e-16; and then citing 29 C.F.R. § 1614.105). Federal employees must contact an Equal Employment Opportunity (EEO) counselor within forty-five days of the alleged Title VII violation to begin the administrative process. Lowe, 2023 WL 5672827, at *2; 29 C.F.R. § 1614.105(a)(1). “[A]dministrative exhaustion is a condition precedent to suit that functions like a statute of limitations.” Lowe, 2023 6 WL 5672827, at *2 (quoting Wilkinson v. Rumsfeld, 100 Fed.Appx. 155, 157 (4th Cir. 2004)).
II. Analysis
A. Subject-Matter Jurisdiction
Federal employees may sue the federal government pursuant to Title VII, but they must do so in federal court. Bullock v. Napolitano, 666 F.3d 281, 284 (4th Cir. 2012) (“Congress waived sovereign immunity for Title VII suits brought by federal employees against the United States, but it explicitly provided for jurisdiction only in federal courts.”). A state court lacks subject-matter jurisdiction over a federal employee's Title VII action. Id. at 286. Under the doctrine of derivative jurisdiction, a federal district court cannot acquire subject-matter jurisdiction over a federal employee's Title VII action if the matter was removed to federal court pursuant to 28 U.S.C. § 1442(a). Id/; see also Kobraei v. Alexander, 521 Fed.Appx. 117, 118-19 (4th Cir. 2013) (vacating and remanding district court's dismissal of federal employee's Title VII action for failure to exhaust administrative remedies because district court did not acquire subject-matter jurisdiction upon removal from state court).
Here, Plaintiff, a federal employee, filed suit against his employing federal agency and federal officers in state court, and Defendants removed the matter pursuant to 28 U.S.C. § 1442(a). As the state court did not have jurisdiction over Plaintiff's Title VII claims, this court did not acquire jurisdiction upon Defendants' removal. See Bullock, 666 F.3d at 286; Kobraei, 521 Fed.Appx. at 119. Accordingly, Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) should be granted and the matter dismissed without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of jurisdiction should be without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims.”) (cited by S. Walk at Broadlands Homeowners' Ass'n, 713 F.3d at 185).
B. Sufficiency of Process and Sufficiency of Service of Process
Defendants challenge both the sufficiency of process and the sufficiency of service of process. (Defs.' Mem. Supp. Mot. Dismiss at 10-11.) More specifically, Defendants argue that Plaintiff failed to comply with the requirements of Federal Rule of Civil Procedure 4(i), which governs service of the United States, its agencies, and its officials, by failing to serve the United States Attorney's Office for the Eastern District of North Carolina and the Office of the Attorney General in Washington, D.C. (Defs.' Mem. Supp. Mot. Dismiss at 10 (citing Fed.R.Civ.P. 4(i)(1), (2)). Plaintiff contends that he complied with all applicable rules regarding service; that any deviations are minor; and that he is prepared to remedy any defects “if the Court deems it necessary.” (Pl.'s Resp. Opp'n Mot. Dismiss at 2.)
The summonses associated with Plaintiff's complaint do not comply with Fed.R.Civ.P. 4(i) (see Pl.'s Complaint at 1-2), and Plaintiff's response does not carry his burden to show that he has complied with Rule 4, see Morgan 2023 WL 9610709, at *3. However, Defendants had actual notice of this lawsuit and do not appear to have been prejudiced by the deficiencies in Plaintiff's service and service of process. See Id. at *9 (citing Karlsson v. Rabinowitz, 318 F.2d 666, 668-69 (4th Cir. 1963), for the proposition that “the technical requirements of service should be construed liberally if the defendant had actual notice of the pending suit,” and quoting Connellv. Adams, No. 1:22-CV-935, 2023 WL 2914856, at *6 (M.D. N.C. Apr. 12, 2023), for the proposition that dismissal for defects in service and service of process is inappropriate unless a party's rights would be “seriously prejudiced or no reasonably conceivable means of acquiring jurisdiction over the defendant remains”). Given Plaintiff's pro se status, the ability to correct the deficiencies in service and service of process, and the existence of “numerous remaining grounds for dismissal,” the undersigned recommends that Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(4) and (5) be denied. Morgan, 2023 WL 9610709, at *3.
C. Failure to State a Claim
Plaintiff's complaint is also subject to dismissal pursuant to Rule 12(b)(6) because Plaintiff has failed (i) to demonstrate that he exhausted his administrative remedies and (ii) to comply with the pleading standard described in Twombly, 550 U.S. at 555, and Iqbal, 556 U.S. at 678-79.
Defendants argue Plaintiff failed to initiate, much less exhaust, his administrative remedies under 29 C.F.R. § 1614.105(a)(1). (Defs.' Mem. Supp. Mot. Dismiss at 7-8.) In support, Defendants have submitted a declaration made under penalty of perjury by Marc Pilcher, an attorney at TSA whose duties include oversight of litigation involving, among other things, Title VII claims made against TSA. (Pilcher Decl. [DE #1-2].) This declaration notes that Attorney Pilcher ordered a search by the unit within TSA responsible for receiving and processing EEO complaints made by TSA employees. Attorney Pilcher avers that said search revealed “TSA's EEO processing unit had no record of an administrative complaint of discrimination of any type filed by Michael McNair based on events occurring between September, 2022 and December, 2022.” (Id. at 3.) In response, Plaintiff states that he spoke with “Manager, Kenneth McDonald” about the alleged discrimination. (Pl.'s Resp. Opp'n at 2.) But nowhere does Plaintiff allege that he contacted an EEO counselor regarding the allegations in his complaint or suggest that he took any other action to exhaust his administrative remedies. (Pl.'s Compl.; Pl.'s Resp. Opp'n Mot. Dismiss.) Accordingly, Defendants' argument that Plaintiff failed to exhaust the administrative remedies required by Title VII for federal employees is meritorious.
Plaintiff has also failed to state a claim upon which relief can be granted because he has not plausibly alleged a hostile work environment claim under Title VII. A hostile environment that violates Title VII “exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Holloway v. Maryland, 32 F.4th 293, 300 (4th Cir. 2022) (quoting Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (internal quotation marks and brackets omitted)). “[T]o state a hostile work environment claim, [a plaintiff] must allege that: (1) he experienced unwelcome harassment; (2) the harassment was based on his race[, color, religion, sex, national origin], or protected activity; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer.” Holloway, 32 F.4th at 300. “While the first element is subjective, the rest of the test is made up of objective components based on a reasonable person standard.” Robinson v. Priority Auto. Huntersville, Inc., 70 F.4th 776, 781-82 (4th Cir. 2023).
Plaintiff alleges no facts from which it could plausibly be inferred that the work restriction imposed upon him was because of his race, color, religion, sex, national origin, or protected activity. (See Pl.'s Compl.) Accordingly, Plaintiff has failed to plausibly allege a hostile work environment claim. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678-79; Holloway, 32 F.4th at 300; Ozmint, 716 F.3d at 805.
Defendants Blackwell and Herrera are mentioned nowhere in the Complaint, which provides a separate basis for dismissal of these individual defendants. (Defs.' Mem. Supp. Mot. Dismiss at 9.)
C ONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendants' motion to dismiss [DE #4] be GRANTED IN PART and DENIED IN PART as set forth above and Defendants' motion to stay discovery [DE #8] be DISMISSED AS MOOT.
The Clerk is DIRECTED to serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until July 29, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (May 2023).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).