Opinion
C/A 3:23-419-SAL-SVH
11-13-2023
Gregory Eugene Wilson, Plaintiff, v. Christine Wormuth, Secretary Department of the Army; Mrs. Nichele Johnson, Training Instructor Supervisor; Attorney General of the U.S., Department of Justice; and United States Attorney for District of South Carolina, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges United States Magistrate Judge
Gregory Eugene Wilson (“Plaintiff”), proceeding pro se, sues his former federal employer, alleging he was wrongfully terminated and was retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). The former employer seeks dismissal.
This matter comes before the court on a motion to dismiss filed by Christine Wormuth, Secretary of the Army, and Nichelle Johnson (collectively “Defendants”), who are both sued in their official capacities. [ECF No. 24].Defendants' motion having been fully briefed [see ECF No. 26], the matter is ripe for disposition. Also pending before the court is Defendants' motion for Plaintiff to serve only counsel of record [ECF No. 31], as well as the following motions filed by Plaintiff: motion for default judgment [ECF No. 25], motions to submit certified mail return receipts [ECF No. 30, 33], and motion for summary judgment [ECF No. 32].
Defendants also seek dismissal of all claims asserted against the remaining defendants, the Attorney General and the United States Attorney for the District of South Carolina. [See ECF No. 24 at 1 n.1].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendants' motion to dismiss and deny Plaintiff's motion for default judgment and for summary judgment. The undersigned grants Defendants' motion for Plaintiff to serve only counsel of record, rendering moot Plaintiff's motions to submit certified mail return receipts.
I. Factual and Procedural Background
At all times relevant to this federal-sector employment case, Plaintiff was a civilian employee of the Army's U.S. Army Master Resilience School at Fort Jackson, South Carolina. [See ECF No. 24 at 1]. Plaintiff alleges in full as follows:
On 16 Oct 2015, Mrs. Nichele Johnson used false and misleading information of material and facts violating established agency policies and practices which resulted in my illegal removal from the workplace and subsequent forced resignation without allowing me due process.[ECF No. 1 at 5]. Plaintiff has made no other allegations in his complaint and seeks only monetary damages. See id. However, Plaintiff clarifies in briefing that he also seeks to assert a claim for Title VII retaliation. [See ECF No. 32 at 1; see also ECF No. 26 at 1 (“This Civil action was invoked under my rights after exhausting the appeal process through the [Equal Employment Opportunity Commission (“EEOC”)] process.”)].
Defendants have submitted evidence that Plaintiff filed a formal discrimination complaint with the EEOC on September 8, 2015. [ECF No. 241 at 1].The parties entered into a negotiated settlement agreement (“NSA”) on December 18, 2015, to “resolve the matter” of Plaintiff's “complaint of alleged discrimination initiated on September 8, 2015, alleging discrimination based on sex (Male) and reprisal (based on current EEO activity).” See id. In exchange for a lump sum and accrued annual leave payments, Plaintiff was required to submit a written resignation. Id. at 2. One provision of the NSA stated Plaintiff's “signature on this agreement constitutes a full and complete settlement of any and all issues and claims arising from the circumstances of the aforementioned EEO precomplaint/complaint.” Id.
“On a motion to dismiss courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Cobin v. Hearst-Argyle Television, Inc., 561 F.Supp.2d 546, 550 (D.S.C. 2008) (citations and emphasis omitted); see also Martineau v. Wier, C/A No. 3:16-2650-SAL, 2020 WL 5757520, at *3 (D.S.C. Sept. 9, 2020) (“A court may also consider documents attached to a defendant's motion to dismiss if the document is integral to and explicitly relied on in the complaint, provided the plaintiff does not challenge the authenticity of the document.”). Here, neither party has challenged the authenticity of the documents submitted by the other, nor has either party argued said documents are not integral to the complaint. Also, “[i]n the employment context, a court may consider an EEOC charge and other EEOC documentation [when considering a motion to dismiss] because such documents are integral to the complaint as Plaintiff necessarily relies on these documents to satisfy the time limit requirements of the statutory scheme.” Pierce v. Office Depot, Inc., C/A No. 0:13-3601-MGL, 2014 WL 6473630, at *5 (D.S.C. Nov. 18, 2014) (citing Williams v. 1199 Seiu United Healthcare Workers East, C/A No. 12-72, 2012 WL 2923164 at * 1 n. 1 (D. Md. July 17, 2012)); see also Adams v. 3D Sys., Inc., C/A No. 019-00663-JMC-KDW, 2019 WL 8754875, at *2 (D.S.C. Nov. 26, 2019), report and recommendation adopted, C/A No. 0:19-00663-JMC, 2020 WL 1527056 (D.S.C. Mar. 31, 2020) (same).
Thereafter, Plaintiff filed another claim with the EEOC, alleging Defendants breached the NSA by failing to timely pay him. Id. Plaintiff also alleged he signed the settlement agreement under extreme duress. Id. The EEOC found there was no coercion and Plaintiff was free to walk away from the negotiation and challenge a forthcoming proposed removal or seek to negotiate at a later date. He chose to settle his EEO complaint. Id. at 4. The EEOC allowed Plaintiff's claims alleging violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”) to proceed, but, upon payment of the settlement funds, dismissed the Title VII claims. Id. at 5.
Plaintiff does not reference an ADEA claim in the instant suit.
Both parties moved for reconsideration of this decision. [ECF No. 24-2]. The decision issued in response noted:
In our prior decision, the Commission determined Complainant was not coerced into signing the settlement agreement and that the settlement agreement was valid on the closure of his Title VII claims. However, the Commission also found that Complainant's formal complaint included claims of discrimination based on age and in reprisal for prior protected activity under the ADEA. We noted that under the Older Workers' Benefit Protection Act (OWBPA), which amended the ADEA effective October 16, 1990, Complainant's waiver of his ADEA rights was not considered knowing or voluntary because the settlement agreement (waiver) did not specifically refer to rights or claims under the ADEA. As Complainant requested his complaint be reinstated, his ADEA claims were reinstated, but not his Title VII claims.... The decision in EEOC Appeal No. 0120161695 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.Id. at 3 (emphasis added).
Plaintiff moved for reconsideration, and the EEOC noted in its September 14, 2020 appeal decision that all Title VII-based claims were resolved by the NSA and reiterated that Plaintiff was not coerced into signing the settlement agreement and that the settlement agreement was valid as to the closure of his Title VII claims. [ECF No. 24-3 at 2 n.1].
Plaintiff appealed the EEOC's September 14, 2020 decision on September 18, 2020. [ECF No. 24-5]. This decision noted “the Commission found that the executed settlement agreement between Complainant and the Agency was valid as to the closure his Title VII claims. As such, the Agency's final decision was proper to not further analyze Title VII in its final decision.” Id. at 1 n.2. Plaintiff also asked for this decision to be reconsidered, which was denied. [ECF No. 24-4].
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be based. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
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 that 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. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
C. Analysis
The court liberally construes the pro se Plaintiff's complaint to allege claims for wrongful termination and denial of due process rights. Although Plaintiff cannot amend his complaint via briefing, see, e.g., S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (“It is well-established that parties cannot amend their complaints through briefing or oral advocacy.”), out of an abundance of caution, and because the parties have addressed the following claims, the court will also address Plaintiff's breach of settlement agreement claim related to his Title VII claims, as well as his Title VII retaliation claim.
1. Wrongful Termination and Due Process Claims
To the extent that Plaintiff asserts claims for wrongful termination and denial of due process rights, these acts are alleged to have occurred in the federal workplace and are preempted by the Civil Service Reform Act, 5 U.S.C. § 1201 et seq. (“CSRA”).
When Congress enacted the CSRA, it comprehensively overhauled the civil service system and created a new framework for evaluating adverse personnel actions against federal employees. See Lindahl v. Office of Personnel Mgmt., 470 U.S. 768, 773-74 (1985). The Supreme Court has read the CSRA's extensive statutory framework to preclude judicial review of adverse personnel decisions except where explicitly provided for in the CSRA. United States v. Fausto, 484 U.S. 439 (1988). Under the CSRA, judicial review is provided only for actions that are appealable to the Merit Systems Protection Board and that result in a final order or decision. See 5 U.S.C. §§ 7701, 7703. In that event, review may be sought exclusively in the Federal Circuit Court of Appeals, not a district court. See 5 U.S.C. § 7703(b)(1). The Fourth Circuit has held that “Congress intended that the CSRA would operate to the exclusion of all other statutory remedies for claims arising out of the federal employment relationship.” Hall v. Clinton, 235 F.3d 202, 206 (4th Cir. 2000).
Because of the exclusive nature of the CSRA, Plaintiff may not use any other avenues-other than those specifically listed in 5 U.S.C. § 2302(d)-to challenge, undo, or otherwise obtain redress for federal personnel actions. The exceptions listed in 5 U.S.C. § 2302(d) include the various discrimination statutes, such as Title VII, the ADEA, and the Rehabilitation Act, but not constitutional or common law claims. As the First Circuit has observed, when an avenue pursued by a plaintiff “is not one of these enumerated [exceptions], . . . the venerable maxim inclusio unius est exclusio alterius applies,” meaning that “the explicit provision of [one thing] within a statute cuts sharply against the implication of [others].” Gonzalez v. Velez, 864 F.3d 45, 55 (1st Cir. 2017) (citation omitted); see also, e.g., Daniels v. McHugh, C/A No. 3:09-182-JFA-JRM, 2011 WL 939228, at *12 (D.S.C. Jan. 18, 2011) (“Even if Daniels is complaining of personnel practices unrelated to her claims of discrimination, they are not subject to judicial review because the CSRA is the exclusive remedy for federal employees seeking redress of non-discriminatory personnel actions connected with federal employment. This includes all non-discriminatory personnel practices which result in Constitutional violations.”) (citations omitted)), report and recommendation adopted, C/A No. 3:09-182-JFA, 2011 WL 939233 (D.S.C. Mar. 16, 2011), aff'd, 449 Fed.Appx. 286 (4th Cir. 2011).
Plaintiff's claims for wrongful termination and denial of due process are preempted; therefore, the court is without jurisdiction over these claims and the undersigned recommends the district judge grant Defendants' motion to dismiss these claims with prejudice.
2. Breach of Settlement Agreement Claim
Plaintiff argues he is pursuing a breach of settlement claim, “based upon the actions of the Agency when they threaten[ed] to fire me if I was to pursue my EEO actions against them” and because the settlement agreement is “fatally flawed” and thus void. [See ECF No. 26 at 2].
However, as stated by the Fourth Circuit:
“The United States, as sovereign, is immune from suit save as it consents to be sued ....” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Congress has, admittedly, waived sovereign immunity in Title VII suits where the federal government is the employer. 42 U.S.C. § 2000e-16(d).
However, this statutory waiver does not expressly extend to monetary claims against the government for breach of a settlement agreement that resolves a Title VII dispute. Even if the matter were at all ambiguous, the issue is resolved by the rule that the “scope” of a “waiver of the Government's sovereign immunity will be strictly construed . . . in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Because neither the settlement agreement nor a statute allow Miss Frahm to sue the government for breach of the settlement agreement, her action was properly dismissed.Frahm v. United States, 492 F.3d 258, 262 (4th Cir. 2007); see also, e.g., Sutton v. Vilsack, C/A No. 2:12-01386-DCN, 2014 WL 4199163, at *3 (D.S.C. Aug. 20, 2014) (“To the extent the complaint does advance a claim for breach of the settlement agreement, the court agrees with the magistrate judge that Title VII does not provide a cause of action against the government for such a cause of action .... Therefore, the court does not have jurisdiction to hear a claim for breach of a settlement agreement.”); 29 C.F.R. § 1614.504(a) (limiting forms of relief a plaintiff may seek when alleging breach of a settlement agreement to requesting the EEOC that the terms of the settlement agreement be specifically implemented or that the complaint be reinstated for further processing).
There is no indication the NSA waived sovereign immunity for Plaintiff's breach of settlement agreement claim.
Accordingly, the undersigned recommends the district judge grant Defendants' motion to dismiss this claim, dismissing Plaintiff's breach of settlement agreement claim with prejudice.
3. Title VII Retaliation Claim
The undersigned also recommends the district judge deny Plaintiff's motion for summary judgment. [ECF No. 32]. Plaintiff's motion primarily concerns his claim for Title VII retaliation, arguing that he has submitted evidence establishing this claim. However, Plaintiff misapprehends the relevant standard when he argues “[b]ecause the Plaintiff's evidence, viewed in light most favorable to him, is sufficient to establish all the elements of his claim, the Plaintiff is entitled to summary judgment ....” [ECF No. 32 at 4].
Here, the evidence is taken in light most favorable to Defendants, as the non-moving parties. Additionally, as applicable here, to make a prima facie claim of retaliation, a plaintiff must show: (1) that she engaged in protected activity, (2) that the employer took a materially adverse action against her, and (3) there is a causal connection between the protected activity and the adverse action. See Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019) (citing Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)). Once the employee establishes a prima facie case, the burden shifts to the employer to rebut the inference of retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Although the employer's burden is not onerous, it must articulate “some legitimate, nondiscriminatory reason” for the adverse employment action. Id. Once the employer produces a legitimate, nondiscriminatory reason, the burden returns to the plaintiff to prove that the defendant's stated reason is pretextual. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
A review of Plaintiff's arguments and evidence demonstrate that he has failed to meet his burden of showing he is entitled to summary judgment on his Title VII retaliation claim. Additionally, it appears that Plaintiff waived his right to litigate this claim when he signed the NSA. See, e.g., Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 211 (4th Cir. 2009) (“[s]ettlement agreements operate on contract principles, and thus the preclusive effect of a settlement agreement should be measured by the intent of the parties”) (citation omitted)).
Accordingly, the undersigned recommends the district judge deny Plaintiff's motion for summary judgment.
4. Additional Claims
Throughout Plaintiff's filings, he makes brief references to other alleged violations, both criminal and civil in nature. As to the former, as a private individual, Plaintiff does not have standing to enforce the criminal laws of the United States, nor is there a private right of action under 18 U.S.C. § 1001-the criminal statute Plaintiff referenced. See, e.g., Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d Cir. 1972) (“It is a truism, and has been for many decades, that in our federal system crimes are always prosecuted by the Federal Government, not . . . by private complaints.”); see also, e.g., Williams v. McCausland, 791 F.Supp. 992, 1001 (S.D.N.Y. 1992) (finding no private right of action under 18 U.S.C. § 1001); Fed. Sav. & Loan Ins. Corp. v. Reeves, 816 F.2d 130, 137 (4th Cir. 1987) (“Defendants claim that there is no basis for implying a civil cause of action from these federal criminal code provisions [including 18 U.S.C. § 1001]. We agree.”).
Additionally, to the extent Plaintiff attempts to bring a claim based on Defendants' alleged failure to provide him union representation on October 19, 2015 [see ECF No. 32 at 2], to bring an action concerning a violation of a collective bargaining agreement (“CBA”), Plaintiff is required to exhaust any grievance remedies as provided in the CBA and plead that the union breached its duty of fair representation. See Del Costello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163-65 (1983); Thompson v. Aluminum Co. of Am., 276 F.3d 651, 656-57 (4th Cir. 2002); see also, e.g., Clement v. Spartanburg Steel Prod., C/A No. 7:19-666-MGL-KFM, 2020 WL 8713676, at *1 (D.S.C. Aug. 12, 2020) (“The undersigned further noted that the Labor Management Relations Act (“LMRA”) governed the plaintiff's allegation that the defendant breached the CBA, and the plaintiff's complaint was void of both an indication that he exhausted his administrative remedies with respect to the CBA and factual allegations regarding a breach by the union of its duty of fair representation”), report and recommendation adopted sub nom. Clement v. Spartanburg Steel Prod., Inc., C/A No. 7:19-666-MGL-KFM, 2021 WL 809428 (D.S.C. Mar. 2, 2021). There is no indication Plaintiff has done so here.
As to these claims, and all others Plaintiff may have asserted, they are also subject to dismissal because Plaintiff has failed to submit a complaint containing sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
5. Remaining Motions
The undersigned additionally recommends the district judge deny Plaintiff's motion for entry of default judgment [ECF No. 25] as to the Attorney General and the United States Attorney for the District of South Carolina, where Plaintiff has failed to allege or submit any facts indicating he has a cause of action against them. See, e.g., Claiborne v. Youngman, C/A No. 3:19-113, 2020 WL 863977, at *4 (E.D. Va. Feb. 21, 2020) (retaining as a defendant the head of the relevant agency, dismissing others “as improperly named defendants in the Title VII claims,” and noting “[a] federal employee asserting a claim under Title VII must name the head of the relevant agency as the defendant”) (citing 42 U.S.C. § 2000e-16(c); Jones v. Sternheimer, 387 Fed.Appx. 366, 368 (4th Cir. 2010) (per curiam)).
The undersigned grants Defendants' motion pursuant to Fed.R.Civ.P. 5(b)(1) [ECF No. 31] for Plaintiff to serve only counsel of record, rendering moot Plaintiff's motions to submit certified mail return receipts. [ECF Nos. 30, 33].
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned grants Defendants' motion for Plaintiff to serve only counsel of record [ECF No. 31] and denies as moot Plaintiff's motions to submit certified mail return receipts. [ECF Nos. 30, 33]. The undersigned recommends the district judge deny Plaintiff's motion for default [ECF No. 25] and motion for summary judgment [ECF No. 32], and grant Defendants' motion to dismiss, dismissing Plaintiff's complaint with prejudice [ECF No. 24].
IT IS SO ORDERED AND 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).