Opinion
CIVIL ACTION NO. 00-2369.
May 21, 2001
ORDER
This cause came for hearing on a previous date upon the Motions of the Defendant to Dismiss the Plaintiffs claims or for a More Definite Statement pursuant to Rules 12(b)(1), 12(b)(6) and 12(e) of the Federal Rules of Civil Procedure ("FRCP"). The Court, having studied the legal memoranda and exhibits submitted by the parties, the record, and the applicable law, is filly advised in the premises and ready to rule.
ORDER AND REASONS
I. Background
The Plaintiff, Dood Johnson ("Johnson"), has maintained employment with the Navy Exchange since 1984, originally at the Belle Chasse Air Station, and since 1989, at the Naval Support Activity. Johnson began working in Belle Chasse at the warehouse in shipping and receiving and also worked in the warehouse at the Naval Support Activity Unit from 1992-1997. However, in 1997, Johnson's second line supervisor, a white male named Glynn Tamborella ("Tamborella"), transferred Johnson from the warehouse to Stores, a position which carries fewer work hours, lower ranking, and a lower salary range. Tamborella denied Johnson's request to be returned to the position ofwarehouseman. Instead, Tamborella hired a white male friend of his, who was a part-time employee and who had no experience as a warehouseman. (Complaint, Doc. 1, ¶¶ 4-10).
It appears that Johnson's troubles began in 1989 when he reported to his then supervisor, Pat Short, that he had seen one of the supervisors stealing from the store. Johnson also made a statement to an FBI agent who was investigating employees under suspicion of theft, one of whom allegedly was Tamborella. Johnson alleges that Tamborella then began to harass and retaliate against him by removing his name from consideration for employee of the month, instructing his supervisor to write him up, malcing negative reports, among other things. (Complaint, Doc.1, ¶¶ 18-21).
Johnson filed an EEO complaint with the Agency on July 25, 1997, alleging discrimination on the basis of race, African-American, as well as reprisal for his whistle-blowing activity. (Complaint, Doc.1, ¶ 22). That agency dismissed those claims, and plaintiff appealed the decision to the U.S. Equal Opportunity Commission ("EEOC") on August 25, 1998. On May 9, 2000, the Commission rendered a decision whereby it dismissed Johnson's whistle-blowing complaint and remanded the other discrimination issues to the Agency. (Complaint, Doc. 1, ¶ 26). Johnson filed the instant action on August 10, 2000, alleging race discrimination violations of Title VII of the Civil Rights Act of 1964 and whistle-blowing reprisal acts ofharassment in violation of the Whistleblower Protection Act ("WPA"), 5 U.S.C. § 2302(b)(8).
The Defendant filed the present Motion to Dismiss Johnson's whistle-blowing causes of action, claiming that this Court lacks subject matter jurisdiction over those claims due to Johnson's failure to seek reliefwith the Merit System Protection Board ("MSPB") pursuant to §§ 1214 and 1221 of the WPA. Similarly, the Defendant moves this Court to dismiss for lack of subject matter jurisdiction Johnson's Title VII claims, claiming that he failed to exhaust his administrative remedies because he did not during the administrative process raise the specific issues of race discrimination that he now raises. Additionally, the Defendant argues that the specific issues raised in the present action do not relate back to the ones the Plaintiff did raise during the administrative process. As an alternative to the dismissal of these "new" Title VII issues, the Defendant moves the Court to require a more definite statement of the complaint. Finally, the Defendant moves to dismiss for failure to state a claim all of Johnson's Title VII claims which are not "ultimate" employment actions and therefore not protected by Title VII.
II. Legal Analysis
A. Motion to Dismiss Pursuant to Rule 12(b)(1).
In order for a district court to maintain an action, the Court must possess subject matter jurisdiction over the Plaintiffs claim. FED. R. Civ. P. 12(b)(1). In deciding whether subject matter jurisdiction is proper in a case, a court may examine the plaintiffs complaint, as well as any undisputed facts evidenced in the record. See Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). In addition, a court may resolve disputed facts on its own in determining whether subject matter jurisdiction is proper in a case. Id. If subject matter jurisdiction is lacking in a case, then the court must dismiss the case pursuant to Rule 12(b)(1) of the FRCP. FED. R. CIV. P. 12(b)(1).
Congress has waived the federal government's sovereign immunity for Title VII suits alleging discrimination in a government workplace on the basis of race, sex, color, religion or national origin by creating an exclusive, preemptive administrative and judicial scheme for the redress of such employment discrimination. 42 U.S.C. § 2000e-16; Brown v. General Services Administration, 425 U.S. 820, 829 (1976). This administrative scheme requires that an employee must first timely exhaust administrative remedies before bringing a lawsuit in federal court. Id. Likewise, the WPA does not give an aggrieved employee the right to directly seek relief in federal court. 5 U.S.C. § 7703.
In a "mixed case" involving both whistleblower and discrimination claims, an aggrieved federal employee can either (1) seek administrative relief through the Merit Systems Protection Board, an independent, quasi-judicial federal administrative agency, established to review civil service decisions, see 5 U.S.C. § 1221; or (2) file a complaint with the employing agency's EEO department. See 5 U.S.C. § 7702; McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995).Robinson v. Rubin, 77 F. Supp.2d 784, 793 (S.D. Tex. 1999).
It appears from the pleadings and supporting documentation that there are issues of both racial discrimination and whistle-blowing reprisal acts alleged by Johnson. In fact, the EEOC's decision discusses both issues, dismissing one and remanding the other. (Defendant's Motion, Exh.A-1). Therefore, the present case is a mixed case of discrimination and retaliation, and Johnson seems to have raised both issues during the administrative process. Consequently, Johnson had the right to bring his complaints to either administrative agency, the EEOC or the MSPB, and he also has the right to timely bring this action in this Court following the EEOC's decision of May 9, 2000, which he has done.
Next, Defendant asserts that Johnson's instant claims of Defendant's violating Title VII by "depriving him of the opportunity of a better salary, chance for promotion, more working hours, and job ranking" do not relate back to his EEOC complaints of Tamborella's removing him from consideration for employee of the Month, writing Johnson up, denying his request to work in the warehouse, and filing negative reports so that Johnson has not exhausted his administrative remedies with regard to these "new" claims. However, these all seem to be examples of alleged adverse acts by the Defendant to support his Title VII violation claim, and all stem from Tamborella's alleged discrimination and retaliation. Thus, they relate back to Johnson's administrative complaint. Accordingly, Johnson did sufficiently exhaust his administrative remedies. Therefore, this case falls under the federal government's waiver of immunity and this Court's subject matter jurisdiction. Consequently, the Defendant's Motion to Dismiss must be DENIED.
B. Motion for a More Definite Statement Pursuant to Rule 12(e).
"If a complaint is ambiguous or does not contain sufficient information to allow a responsive pleading to be framed, the proper remedy is a motion for a more definite statement under Rule 12(e)." Beanal v. Freeport McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). A complaint that contains a "bare bones" allegation that a wrong occurred and that does not plead any of the facts giving rise to the injury does not provide adequate notice. Id.
Johnson's complaint states: "Defendant violated Title VII by depriving the plaintiff of the opportunity of a better salary, chance for promotion, more working hours, and job ranking by refusing to allow plaintiff to continue to work as a warehouseman and/or to be rehired as a warehouseman due to the fact that plaintiff is black." (Complaint, Doc.1, ¶ 28). Defendant complains that he is not given notice in the form of factual specifics to respond to this part of the complaint because it is not apparent from the pleadings whether there were one or more promotion actions. The Court would infer that Johnson believes that he has been denied the opportunity for advancement by Tamborella's alleged write ups, changing of work schedules, etc., and that would seem sufficient for Defendant to frame a response. However, in an abundance of caution, the Court would request that Johnson amend his pleadings to include some of the factual specifics that form the basis for his alleged deprivation of the chance for promotion to an extent that will sufficiently place Defendant on notice of the basis for that claim.
C. Motion to Dismiss Pursuant to Rule 12(b)(6).
A motion to dismiss under Rule 12(b)(6) of the FRCP "is viewed with disfavor and is rarely granted." Lowrey v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. See Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FRCP 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as "whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Lowrey, 117 F.3d at 247 (citing 5 Charles A. Wright Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357, at 601 (1969)).
"The issue is not whether a Plaintiff will ultimately prevail but whether he is entitled to offer evidence to support his claims." Doe v. Hillsboro Independent School Dist., 81 F.3d 1395, 1401 (5th Cir. 1996). Therefore, no matter how improbable the facts alleged are, they must be accepted as true for the purposes of a motion to dismiss pursuant to Rule 12(b)(6) of the FRCP. See Neitzke v. Williams, 490 U.S. 319 (1993).
The Fifth Circuit has stated that
"Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781-782 (5th Cir. 1995). "Ultimate employment decisions" include acts "such as hiring, granting leave, discharging, promoting, and compensating." Id. at 782.Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).
Defendant asserts that Johnson has failed to state a claim for which Title VII grants relief, except for the non-selection for promotion, because the removal of Johnson's name for employee of the Month consideration, write ups, etc. do not rise to the level of "ultimate employment decisions." Johnson's "Statement of Claim" in his complaint lists alleged Title VII violations as depriving of a better salary, chance for promotion, more working hours, and job ranking, but the write ups, etc. are listed in the factual allegations portion of that complaint, apparently as supporting evidence to place Defendant on notice of the specific factual bases for those claims. Moreover, while better salary, working hours, and job ranking do not match verbatim the ultimate employment actions listed in Mattern, they certainly are very closely related to hiring, promotion, and compensation and are more than merely tangential employment decisions. Therefore, viewing the pleadings in the light most favorable to Johnson, there are grounds stated in the complaint upon which relief may be granted pursuant to Title VII. Accordingly, Defendant's Motion to Dismiss for Failure to State a Claim must be DENIED.
III. Conclusion
Johnson has stated claims in his complaint upon which the law affords relief. Moreover, he will amend that complaint to sufficiently notice the Defendant of the factual specifics that form the basis of his allegedly denied promotion so that the Defendant may adequately respond. Finally, Johnson has adequately exhausted his administrative remedies as required by federal law; therefore, this Court does possess subject matter jurisdiction over this matter. Accordingly,
IT IS ORDERED that the Defendant's Motions to Dismiss (Doc. 4) be, and the same hereby are DENIED.
IT IS FURTHER ORDERED that the Defendant's Motion for a More Definite Statement be, and the same hereby is GRANTED.
IT IS FURTHER ORDERED that the Plaintiff amend his complaint to include the specific factual basis of his promotion claim within 10 days from entry of this order.