Opinion
C. A. 3:21-3708-JMC-SVH
03-25-2022
Michelle Denise Parker, Plaintiff, v. Ward Douglas Ward, Michael Timothy McTigue, Stephen Kent Aiton, Troy Anthony Clay, Rodney D. Fogg, Milford Howard Beagle, Jr., and Marcus Aaron Motley, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
In this employment discrimination case, an employee attempts to sue her former supervisors for discrimination arising from her employment at Fort Jackson with the Department of the Army (the “Army”). In response, the supervisors seek dismissal of the claims against them because they are not the Army and cannot be sued for discrimination.
Michelle Denise Parker (“Plaintiff”), proceeding pro se, sues the following employees of the Army: Deputy Commandant Ward Douglas Ward, Deputy Director Michael Timothy McTigue, Commander Stephen Kent Aiton, Chief of Staff Troy Anthony Clay, Deputy Chief of Staff Rodney D. Fogg, Commanding General Milford Howard Beagle, Jr., and Commander Marcus Aaron Motley (collectively “Defendants”). Plaintiff asserts violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.
This matter comes before the court on Defendants' motion to dismiss [ECF No. 11]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the motion to dismiss procedures and the possible consequences if she failed to respond adequately to Defendants' motion. [ECF No. 12]. The motion having been fully briefed [ECF Nos. 14, 16], it is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. For the reasons that follow, the undersigned recommends the district judge grant Defendants' motion to dismiss.
I. Factual Background
Plaintiff alleges that during her employment with the Army she was subjected to discrimination based on her race (Black), sex (female), and disability (mental), and subject to reprisal for prior Equal Employment Opportunity activity. [ECF No. 1 at 7]. Plaintiff also alleges that she was forced to endure a hostile work environment. Id.
Plaintiff specifically alleges that she was discriminated against on the basis of “race and sex” when her position description was “enlarged/changed making her responsible for . . . daily administrative duties” and that she was “treated like an inmate, desk/work area was cell and supervisors, senior leaders, and coworkers were the correctional officers and wardens.” Id. Additionally, Plaintiff alleges that she was subject to disability discrimination and retaliation for her prior protected activity when her request to telework five days a week was partially denied by her supervisors, who instead approved three days of telework a week in a “3-2 schedule.” Id. at 7-8. Finally, Plaintiff claims that in June 2021, she was constructively discharged when her disability retirement was approved. Id. at 8.
Plaintiff states the Equal Employment Opportunity Commission has not issued a notice of right to sue letter, but that she requested one on November 1, 2021. Id. at 10. Attached to her complaint, Plaintiff also includes letters from the Equal Employment Opportunity Office, dated October 11, 2019 and April 19, 2021, notifying her as follows in the event that she files a civil action:
You are further notified that if a civil action is filed, you must name the appropriate Department head or Agency head as the defendant and provide his or her official title. DO NOT NAME JUST THE AGENCY OR DEPARTMENT. Failure to name the Department head or Agency head or to state his or her official title may result in the dismissal of your case. The appropriate agency is the Department of the Army. The head of the Department of the Army is Mr. Mark T. Esper, who is the Secretary of the Army.[ECF No. 1-1 at 3-4, 9 (identifying John E. Whitley, as the Acting Secretary of the Army)].
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Defendants argue they are entitled to dismissal of Plaintiff's Title VII claims. Title VII prohibits discrimination by employers. See 42 U.S.C § 2000e-2. Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such person.” 42 U.S.C. § 2000e(b). In construing the definition of “employer” under Title VII, it is well-established that Title VII does not impose individual liability on supervisory employees. See Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998) (holding that supervisors cannot be found liable in their individual capacity under Title VII because they do not fit within the definition of an employer). Plaintiff does not allege Defendants were her employers under Title VII.
Instead, “[i]n Title VII claims against the United States, a party may only file a civil action in which the head of the department, agency or unit, as appropriate, shall be the defendant.” Charlot v. Donley, C/A No. 3:11 579 MBS-SVH, 2012 WL 3264568, at *3 (D.S.C. Aug. 9, 2012); see also 42 U.S.C. § 2000e-16(c) (“an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.”).
Plaintiff's opposition to Defendants' motion to dismiss details additional allegations, inserts “Department of the Army Agency” in place of Defendants' names, and suggests that the Department of the Army's awareness of her claims equates to naming the Secretary of the Department of the Army as the defendant. [See ECF No. 14].
However, “it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss ....” Covington v. Wilkie, C/A No. 3:19-3399-JFA-SVH, 2020 WL 8413567, at *7 (D.S.C. Aug. 14, 2020) (citation omitted); see also Eleazu v. Bernard, C/A No. 3:20-2706-JMC-SVH, 2020 WL 11613533, at *4 (D.S.C. Nov. 23, 2020) (stating “Plaintiff cannot amend his pleadings in a response to Defendant's motion to dismiss”).
Additionally, Plaintiff's position in response to Defendants' motion to dismiss, that the “Summons was mailed to and received by the Defendant, Department of the Army Agency” [ECF No. 14 at 1], is insufficient. Cf. Williams v. Virginia Nat. Guard Bureau, C/A No. 90-2633, 1990 WL 135860, at *2 (4th Cir. Sept. 21, 1990) (finding that “[n]aming a supervisor in a subordinate department is simply not sufficient notice to the head of the agency to satisfy the requirements of Rule 15(c) and Schiavone.”).
Accordingly, Plaintiff's Title VII claims are subject to dismissal against Defendants, and the undersigned recommends the district judge grant Defendants' motion to dismiss.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion to dismiss. [ECF No. 11]. Fourth Circuit precedent directs the undersigned additionally to recommend that the dismissal of Plaintiff's claims be without prejudice with leave to file an amended complaint within 15 days of the district court's order on Defendants' motion to dismiss. See Ostrenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir. 1999). If the district judge accepts this recommendation and Plaintiff fails to file an amended complaint within 15 days of the district court's order on the motion to dismiss, Plaintiff's complaint should be dismissed with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).