Opinion
Civil Action No. 3:00-CV-1470-L.
June 30, 2003.
MEMORANDUM OPINION AND ORDER
Before the court is the Motion of Douglas L. Gastorf, in His Individual Capacity, to Dismiss Original Complaint, filed December 1, 2000; and Defendants' Lawrence H. Summers' and Douglas L. Gastorfs First Amended Motion to Dismiss Original Complaint, or in the Alternative, Motion for More Definite Statement, filed June 14, 2001. After careful considering the parties' motions, responses, replies, Plaintiff's complaint, and the applicable law, the court grants the Motion of Douglas L. Gastorf, in His Individual Capacity, to Dismiss Original Complaint; grants Defendants' Lawrence H. Summers' and Douglas L. Gastorfs First Amended Motion to Dismiss Original Complaint; and denies as moot Defendants' Motion for More Definite Statement for the reasons herein stated.
I. Factual and Procedural Background
On July 10, 2000, Karen Wilkerson ("Wilkerson" or "Plaintiff") brought this action against Douglas L. Gastorf ("Gastorf") and John W. Snow ("Snow") (collectively "Defendants"), alleging federal claims of race and sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, ("Title VII"), 42 U.S.C. § 2000e et seq., a state law claim of intentional infliction of emotional distress, and federal constitutional claims of violation of her right to privacy and due process. Wilkerson, an African American female, is a federal employee with the Criminal Investigation Division ("CID") of the Internal Revenue Service ("IRS") in Dallas, Texas, and she has been employed by the IRS since 1979. Since 1995, Gastorf, also a federal employee, has been the Chief of the Dallas CID of the IRS, and he was Plaintiff's supervisor at the time the events leading to this lawsuit occurred. Snow is the Secretary of the Department of Treasury and represents the United States government.
Plaintiff also refers to §§ 1981 and 1983 in her Original Complaint; however, it is unclear whether she intended to allege claims under these sections, because she only refers to these sections in addressing jurisdiction. Contrary to Plaintiff's allegations, §§ 1981 and 1983 are not jurisdictional statutes and thus do not confer jurisdiction on the court; rather, they are vehicles for asserting certain constitutional or statutory claims. The court therefore construes Plaintiff's Original Complaint as having asserted claims under these statutes.
Wilkerson alleges in her Complaint that after she filed an equal employment opportunity ("EEO") complaint, she was subjected to the following discriminatory acts and retaliation "[f]rom at least 1997 through presently" [sic]: (1) racial slurs in the workplace such as "Diversity Queen," "Gingerbread Lady," "Aunt Jemima," "Guerilla [sic] in the Mist," and "Bully"; (2) public disclosure of private facts regarding her work activities and threatened disciplinary action; (3) constructive demotion when her firearm was taken away, and she was placed on light duty; (4) humiliation and embarrassment as a result of being singled out at a staff meeting; (5) threats that her workload would be reassigned; (6) requirement that she perform menial tasks; and (7) harassment from co-workers in the form of verbal disapproval after she stepped down from management. Plaintiff further alleges that she was held to a different work standard and closer supervision than male and non-African American employees in her division after management learned of her participation in the EEO process. Specifically, she alleges that her times of arrival and departure were more closely watched; that she was given a memorandum on leave abuse, which was not given to male employees when they requested leave; that she requested a Special Act Award, but was informed that no such awards could be given even though a non-African American male was given an award; that she was requested to resubmit to a medical evaluation and test that she had completed a month earlier while other male and non-African Americans were not; and that she received a letter of reprimand for alleged unprofessional conduct that others similarly situated did not receive. With respect to her constitutional claim, Plaintiff alleges that Defendants violated her: (1) privacy rights by disclosing confidential information gathered through the EEO process to co-workers and non-employees and threatening to take disciplinary action against her based on such information; and (2) due process rights by constructively demoting her when they took her firearm and placed her on light duty without explanation, prior notice, or an opportunity to be heard.
For these alleged constitutional violations and discriminatory acts, Wilkerson sues Gastorf in his official and individual capacity. Wilkerson also alleges a claim against Gastorf for intentional infliction of emotional distress, which she allegedly suffered as a result of the constitutional violations and discriminatory acts. Snow, on the other hand, was sued in his official capacity as the executive over the IRS. According to Wilkerson, Snow or the IRS is directly or vicariously liable for Gastorf's conduct for failing to investigate promptly and thoroughly her complaint and to take action to stop the discrimination. For relief, Wilkerson seeks punitive and statutory damages against Gastorf; back pay and front pay; lost benefits; restoration of all leave taken as a result of Defendants' actions; restoration of 19.5 hours of Law Enforcement Availability Pay ("LEAP"); expungement of the written reprimand and any related documentation from her official employee file; pay retention of her prior grade as a GM-14/step 5; and reassignment within the Dallas CID.
On December 1, 2000, Gastorf filed a motion to dismiss Plaintiff's claims against him in his individual capacity, and on June 14, 2001, Defendants jointly filed Defendants' Lawrence H. Snow' and Douglas L. Gastorfs First Amended Motion to Dismiss Original Complaint, or in the Alternative, Motion for More Definite Statement. Plaintiff filed a response to Gastorf's motion to dismiss and Defendants' original motion to dismiss, but she did not file a response to Defendants' amended motion to dismiss, which subsumed their prior motion. Defendants filed replies to each of Plaintiff's responses, and on June 14, 2001, Defendants moved to stay further implementation of the court's scheduling and mediation orders. Because the defense of qualified immunity had been raised, the court granted Defendants' motion to stay until it ruled on the motions to dismiss and motion for more definite statement.
II. Rule 12(b)(6) Motion to Dismiss Standard
A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "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. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Stated another way, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Soreina, 534 U.S. 506, 512 (2002) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, "` [d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the plaintiff's] claims.'" Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
III. Defendants' Grounds for Dismissal
In his motion to dismiss, Gastorf contends that Plaintiff's claims should be dismissed against him in his individual capacity, because: (1) he and Wilkerson are federal employees, and therefore all of her claims, except for her Title VII claims against the Secretary of the Treasury, are preempted by the Civil Service Reform Act ("CSRA"); (2) as a federal employee, he is entitled to qualified immunity and cannot be held individually liable for tortious conduct committed in the scope of his employment; (3) Wilkerson failed to allege specific facts to support her constitutional claims and cannot show that he is not entitled to qualified immunity; (4) Wilkerson failed to exhaust her administrative remedies as required by the Federal Tort Claims Act; (5) the damages requested by Plaintiff are not permitted under the CSRA; and (6) the injunctive relief she seeks is moot, because she is no longer under his supervision or subject to the alleged discriminatory conduct.
In their joint Motion to Dismiss, Defendants argue that Plaintiff has failed to state a claim upon which relief can be granted with respect to all causes of action not brought under Title VII, because Title VII provides both the exclusive cause of action and remedy for federal employees who wish to assert employment discrimination claims. With respect to her Title VII claims, Defendants contend that Wilkerson has failed to allege discriminatory acts within the statutory actionable period and has not set forth the date she first contacted an EEO counselor, both of which are necessary to determine whether the court has subject matter jurisdiction over the action. Defendants also contend that Plaintiff has failed to allege sufficient facts to establish a claim of sex or race discrimination, harassment, and retaliation. Alternatively, Defendants move for a more definite statement, requesting that Plaintiff be required to allege specific facts regarding the discriminatory acts and the dates on which they occurred sufficient to set forth unlawful discrimination under Title VII.
In response, Plaintiff asserts that she timely filed her complaint and the court therefore has jurisdiction. With respect to Gastorf's FTCA contentions, Wilkerson contends that: (1) the FTCA does not apply to her claim for damages against Gastorf in his individual capacity, and she not required to exhaust administrative remedies under the FTCA; (2) qualified immunity only applies to damages, not equitable relief; and (3) Gastorf's actions were ministerial rather than discretionary, so that he is not entitled to immunity. She also maintains that Gastorf has the burden of proving that he is entitled to immunity, and that it is improper for him to shift the burden to her by requiring her to allege specific facts to show that he is not entitled to immunity at this early stage in the lawsuit. Regarding Defendants' contention that she failed to allege sufficient facts to support her Title VII claims, she maintains that her complaint is not so vague and ambiguous that Defendants cannot frame a responsive pleading.
IV. Analysis
A. Failure to State a Claim
"Title VII provides the exclusive remedy for employment discrimination claims raised by federal employees." Jackson v. Widnall, 99 F.3d 710, 715 (5th Cir. 1996) (citing Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976)). Here, Plaintiff's allegations of constitutional violations and state law claim of intentional infliction of emotional distress arise out of the same facts as her employment discrimination claims and are therefore preempted by Title VII and cannot afford an independent ground for relief Rowe v. Sullivan, 967 F.2d 186, 189 (5th Cir. 1992). Accordingly, Plaintiff fails to state a claim upon which relief can be granted. The court therefore grants the Motion of Douglas L. Gastorf, in His Individual Capacity, to Dismiss Original Complaint with respect to Plaintiff's constitutional claims for violation of her right to privacy and due process, as well as her claim for intentional infliction of emotional distress, and these claims are dismissed with prejudice.
Regarding Plaintiff's Title VII claims against Gastorf, where a public employer is involved, the plaintiff can state no claim against the official who committed the discriminatory act in his individual capacity. Oden v. Oktibbeha County, 246 F.3d 458, 464-65 (5th Cir. 2001); Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (holding that only employers are liable for unlawful conduct under Title VII). "Further, a plaintiff is not entitled to maintain a Title VII action against both an employer and its agent in an official capacity." Smith v. Amedisys Inc., 298 F.3d 434,448 (5th Cir. 2002). Because Plaintiff sued both her employer, the IRS or Secretary of the Department of Treasury, and its agent, Gastorf, in his official capacity, her claims against Gastorf in his official capacity must also be dismissed. See id. Accordingly, the court grants the Motion of Douglas L. Gastorf, in His Individual Capacity, to Dismiss Original Complaint with respect to Plaintiff's Title VII claims against him. For the reasons stated, Plaintiff's Title VII claims are dismissed with prejudice against Gastorf in his individual and official capacities, leaving only Plaintiff's Title VII claims against Snow. Having disposed of all of Plaintiff s claims against Gastorf, the court need not address Gastorf's remaining arguments regarding the FTCA, qualified immunity, and the CSRA.
The Supreme Court has made clear that "a suit against a governmental officer in his official capacity is the same as a suit against the entity of which the officer is an agent, and that victory in such an official-capacity suit imposes liability on the entity that the officer represents." McMillian v. Monroe County, 520 U.S. 781, 785 n. 2 (1997) (citations omitted); Kentucky v. Graham, 473 U.S. 159, 165 (1985); Brandon v. Holt, 469 U.S. 464, 471 (1985).
B. Subject Matter Jurisdiction
With respect to Wilkerson's Title VII claims against Snow, Defendants contend that the court lacks subject matter jurisdiction, because she failed to allege facts to establish that she exhausted her administrative remedies before bringing this civil action in federal court. The court agrees.
Because Congress has waived the government's sovereign immunity for suits alleging discrimination in a government workplace on the basis of race, sex, color, religion, and national origin, a federal employee may bring an employment discrimination lawsuit against a federal agency under Title VII. See 42 U.S.C. § 2000e-16. Before doing so, however, a federal employee must meet two requirements before filing a Title VII action in federal court: (1) the complaint must be filed within the time provided by Title VII; and (2) the complainant must have first exhausted her administrative remedies. Randel v. United States Dep't of Navy, 157 F.3d 392, 395 (5th Cir. 1998). Failure to comply with either of these requirements deprives the district court of jurisdiction over the case; it is the well-settled law of this circuit that each requirement is a prerequisite to federal subject matter jurisdiction. Id.
A civil action for Title VII violations may be brought in district court by federal employees only after: (1) an appeal to the EEOC; (2) "final action taken by a department, agency, or unit referred to in subsection (a) of this section"; or (3) if no "final action" is taken, after 180 days have elapsed from the filing of the complaint of discrimination. See 42 U.S.C. § 2000e-16(c). "Final action" means either (a) adoption by the relevant government agency of the EEO counselor's final report, (b) a final decision by the EEOC, if the claimant appeals to the EEOC, or (c) the passage of 180 days without receipt of a final decision by either the relevant agency or the EEOC. See id.; Martinez v. Dep't of United States Army, 317 F.3d 511, 512-13 (5th Cir. 2003) (per curiam).
42 U.S.C. s 2000e-16(c) provides:
Within 90 days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit . . . or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, 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-05 of this title, in which civil action the head of the department . . . shall be named.
In the present case, Plaintiff did not file a response to Defendants' amended motion to dismiss, and after reviewing Plaintiff's Original Complaint, it is clear that she has alleged no facts regarding the date she filed her formal EEOC complaint or charge or the disposition of her complaint. Rather than alleging facts, Plaintiff merely asserts in her Original Complaint and her response to Defendants' original motion to dismiss that she has met the prerequisites for bringing a Title VII action in federal court, and the court has jurisdiction over the claims. As the party seeking the federal forum, Wilkerson has "the burden of establishing federal jurisdiction." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993 (2001). Wilkerson has not presented adequate facts for the court to determine that she has exhausted her administrative remedies, thereby vesting the court with jurisdiction. The court therefore concludes that Plaintiff has failed to allege sufficient facts to establish that she has met the prerequisites for filing a Title VII action in federal court, and as a result, the court lacks jurisdiction over her Title VII claims. Since subject matter jurisdiction is lacking, these claims are dismissed.
On July 2, 2001, Plaintiff filed a Motion for Leave to File Amended Complaint with a proposed First Amended Complaint attached as an exhibit. This motion, however, was found to be deficient, as it was not filed in accordance with Local Rule 15.1, and it was therefore unfiled. Thereafter, Plaintiff never sought leave to amend her complaint to set forth facts to show that she exhausted her administrative remedies. Moreover, although Plaintiff sets forth three dates in her proposed First Amended Complaint on which she allegedly filed an EEOC complaint, she does not state whether she consulted an EEO counselor prior to filing her EEOC complaint; nor does she mention whether the EEOC ever acted on her complaint and, if so, the date of the EEOC's disposition. As stated previously, Plaintiff did not file a response to Defendants' amended motion to dismiss to establish that she exhausted her administrative remedies. Under these circumstances, even though Plaintiff did not seek leave to amend her complaint after her first motion for leave to amend was unfiled, the court, determines that allowing her to amend at this stage would unduly, and unnecessarily delay the litigation.
Even if the court determined that it had jurisdiction, Wilkerson's Title VII claims nevertheless fail. Federal employees, "who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap, must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter." 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.105(a)(1). "If the employee fails to do so, his claim is barred, [and] [t]he employee must establish waiver, estoppel, or equitable tolling to circumvent this requirement. Teemac v. Henderson, 298 F.3d 452, 454 (5th Cir. 2002) (citing Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992)). Contact with a counselor must be initiated "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a). If the EEO counselor is unable to resolve the matter informally, the counselor notifies the employee of his right to file a formal administrative complaint with the employing agency. 29 C.F.R. § 1614.105(d).
Here, Plaintiff's complaint is devoid of any allegation that she sought informal counseling or contacted an EEO counselor before filing her EEOC complaint. Since Plaintiff has failed to allege that she either sought informal counseling or contacted an EEO counselor before filing her EEOC complaint, she has failed to meet her burden, and her claims are barred. Dismissal of her claims under Fed.R.Civ.P. 12(b)(6) is therefore appropriate. See Teemac, 298 F.3d at 454. Having granted Defendants' Lawrence H. Summers' and Douglas L. Gastorf's First Amended Motion to Dismiss Original Complaint, the court need not address Defendants' Motion for More Definite Statement, and it is therefore denied as moot. V. Conclusion
For the reasons herein stated, the Motion of Douglas L. Gastorf, in His Individual Capacity, to Dismiss Original Complaint is granted; Defendants' Lawrence H. Summers' and Douglas L. Gastorf's First Amended Motion to Dismiss Original Complaint is granted; and Defendants' Motion for More Definite Statement is denied as moot. Accordingly, Plaintiff's constitutional claims for violation of privacy and due process rights, state law claim for intentional infliction of emotional distress, and Title VII claims are dismissed with prejudice. The court's ruling disposes of all claims asserted by Plaintiff. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.