Kyisha Jones v. Jeh Johnson, 707 F. App'x 321

Background

Jones, a female CBP officer since 2003, applied for Supervisory CBP Officer promotions in June 2011, August 2011, and June 2012 and was denied each time; she alleges sex discrimination because male candidates (and one female) were promoted, including a man with a suspension comparable to hers.
Jones had received a five-day suspension in 2007; CBP cited that suspension when denying her a June 2011 promotion. An August 2011 promotee had a suspension for outside employment that CBP treated as a technical violation.
Jones filed an EEOC charge on September 7, 2011 (sex discrimination), received notice the investigation completed in December 2011, requested a final agency decision, and later filed/amended charges in 2013 adding race and retaliation after learning how CBP characterized her in its defense.
Concurrently, DHS Office of Inspector General Special Agent McLellan investigated Jones for alleged identity-theft–related mortgage fraud and possible smuggling; a sealed federal complaint was filed and then dismissed; state charges later resulted in a nolo contendere plea. Jones alleges McLellan fabricated or withheld evidence and improperly pressured her for smuggling information.
Jones sued in district court asserting 24 counts (Title VII, constitutional Bivens claims, and state torts); district court dismissed all counts under Rule 12(b)(6). The Sixth Circuit affirmed dismissal of Counts 2–24 but reversed dismissal of Count 1 (Title VII sex-discrimination official-capacity claim against DHS Secretary) and remanded as to the June and August 2011 promotions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Jones plausibly pleaded Title VII sex-discrimination (failure to promote)	Jones: she is a woman, qualified, denied promotion while a man with similar suspension was promoted; therefore sex was a plausible factor	Defs: legitimate, non-discriminatory reason (her suspension, leadership concerns); no plausible disparate-treatment inference	Court: Reversed dismissal as to June 2011 and August 2011 promotions — complaint states plausible sex-discrimination claim
Whether Jones exhausted administrative remedies for Title VII claims	Jones: her Sept. 7, 2011 EEOC contact covers the relevant promotions and she attempted to amend in 2013	Defs: she failed to timely raise race/retaliation and did not timely exhaust June 2012 promotion; EEOC investigation had concluded Dec. 2011	Court: Exhaustion adequate for June and August 2011 (may be unitary); inadequate for June 2012 and for race/retaliation claims — those remain dismissed
Whether Bivens constitutional claims against McLellan and official-capacity claims against DHS/Secretary are viable	Jones: McLellan violated due process, equal protection, fabricated evidence, false arrest, malicious prosecution, abuse of process, and inflicted emotional distress	Defs: Miranda non-warning is not due-process; allegations are conclusory; state plea and mortgage-app inconsistencies undermine fabrication allegation; Bivens does not reach state-law torts or official-capacity damages against the U.S.	Court: Affirmed dismissal — official-capacity constitutional claims barred (FTCA/sovereign immunity); Bivens claims against McLellan dismissed as not plausibly pleaded or not cognizable
Whether state-law tort claims were properly pled and exhausted under FTCA	Jones: brings state tort claims against DHS/Secretary and relies on OSC complaints	Defs: FTCA requires claim presented in writing to agency and sum certain; OSC filings do not satisfy FTCA presentment	Court: Affirmed dismissal — claims improperly brought against officials rather than the U.S., and Jones failed to present a written claim with sum certain to DHS

Key Cases Cited

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (complaint must state a plausible claim to survive Rule 12(b)(6))
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (discrete acts vs. continuing violation rule for Title VII)
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (Bivens actions for constitutional violations by federal actors)
Ashcroft v. Iqbal, 556 U.S. 662 (conclusory allegations insufficient to survive Rule 12(b)(6))
Chavez v. Martinez, 538 U.S. 760 (failure to give Miranda warnings not generally a due-process violation)
FDIC v. Meyer, 510 U.S. 471 (suit for money damages against federal agencies/officials barred; FTCA/sovereign immunity principles)
Hicks v. SSP Am., Inc., [citation="490 F. App'x 781"] (elements of failure-to-promote Title VII claim)
Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724 (administrative exhaustion requirement under Title VII)
McFarland v. Henderson, 307 F.3d 402 (same—exhaustion prerequisite)
Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430 (appellate courts generally do not consider issues not passed on below)
Painter v. Robertson, 185 F.3d 557 (investigating one offense to obtain information about another is not per se unlawful)
Glarner v. U.S. Dep’t of Veterans Admin., 30 F.3d 697 (FTCA presentment requires written notice and sum certain)