Jessalyn L. MARCUS, Plaintiff, v. Timothy GEITHNER, Secretary of the Treasury et al., Defendants.
Civil Action No. 09-1686 (RMU).
United States District Court, District of Columbia.
Sept. 22, 2011.
Carl Ezekiel Ross, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
GRANTING THE DEFENDANTS’ PARTIAL MOTION TO DISMISS
RICARDO M. URBINA, District Judge.
I. INTRODUCTION
The plaintiff, a pro se litigant, is a former employee of the Department of the Treasury who alleges that she was the victim of racial discrimination. She seeks relief under Title VII of the Civil Rights Act of 1964,
Because sovereign immunity bars the plaintiff‘s tort claims and the plaintiff‘s DCHRA claim, the court dismisses those claims for lack of subject matter jurisdiction. Because the plaintiff fails to state a claim against the federal government under
II. FACTUAL AND PROCEDURAL
In 2002, the plaintiff, an African-American female, began her employment with the United States Department of the Treasury (“Treasury“) within the Bureau of Engraving and Printing (“BEP“). Am. Compl. ¶¶ 1-2. The plaintiff first held an entry-level position as a Mutilated Currency Examiner to be paid at a GS-5 level.2 Id. The plaintiff‘s duties as a Mutilated Currency Examiner “included identifying and reconstructing damaged currency, and determining the value of the damaged money for reimbursement.” Id.
In 2003, the BEP‘s Office of Currency Standards (“OCS“) held a meeting attended by various high-level Treasury employees, including defendants Gregory Carper, the Chief Finance Officer, and Lorraine Robinson, a former Division Manager within the agency. Id. ¶ 3. At this meeting, the defendants discussed the possibility that a Mutilated Currency Specialist would relocate to the Western Currency Facility (“WCF“), located in Fort Worth, Texas. Id. The plaintiff volunteered to work at the WCF on a temporary basis, from March through May 2004. Id. ¶ 4. The plaintiff states that “[t]he salary/pay grade scale for [this assignment] was GS-5 through GS-9.” Id. Subsequently, the plaintiff “agreed to relocate permanently” to the WCF, and she moved to Texas in August 2004. Id. ¶ 5. At that time, the plaintiff “was a GS-7 Mutilated Currency Examiner.” Id. The plaintiff asserts that she accepted the transfer with the understanding that she would receive a pay grade increase by September 2004. Id. ¶ 4. The plaintiff claims that this pay grade increase never materialized. Id. ¶ 7. Rather, the plaintiff alleges that the defendants informed her that she “would have to wait until March or April 2005 to receive her GS-8, wait another year ... for her GS-9 and [then] wait for a GS-11 position to become available” in 2007 or 2008. Id. ¶¶ 4, 8.
Believing that she had been misled and that “management[‘s] conduct was illegal,” the plaintiff contacted an Equal Employment Opportunity Commission (“EEOC“) representative on October 5, 2004. Id. ¶ 9. The plaintiff “complained ... about what she perceived [as] race and gender discrimination in regards to the relocation to Texas.” Id. (emphasis removed). On October 6, 2004, the plaintiff sent an email to Robinson and “informed her that she had contacted an EEOC Representative.” Id. ¶ 12. Following this communication and the plaintiff‘s filing of a union grievance on November 29, 2004, the defendants allegedly subjected the plaintiff to “a barrage of adverse employment actions,” which included: (1) changing the plaintiff‘s work schedule without prior approval; (2) false accusations that the plaintiff had made errors in her work; (3) increases in the difficulty of the plaintiff‘s work load; (4) inadequate training; (5) denial of the plaintiff‘s request for transfers due to a family emergency; (6) denial of the plaintiff‘s request for leave without pay; and (7) placing the plaintiff on “absent without leave” status. Id. ¶ 13.
In September 2009, the plaintiff filed an action in this court, advancing the following claims: (1) fraudulent and negligent misrepresentation; (2) “pattern-or-practice of hostile retaliatory work environment/harassment“; (3) retaliation; (4) disparate treatment; (5) intentional infliction of emotional distress (“IIED“); and (6) constructive discharge. Id. ¶ 1. The plaintiff claims the defendants violated Title VII,
The defendants now move for partial dismissal of the plaintiff‘s claims. See generally Defs.’ Mot. to Dismiss. In particular, the defendants seek dismissal pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the plaintiff‘s common law tort claims, the plaintiff‘s § 1981 claim and the plaintiff‘s Title VII “pattern-or-practice” claim. Id. In addition, the defendants also ask this court to dismiss the plaintiff‘s claim for punitive damages. Id. With the defendants’ motion now ripe for adjudication, the court turns to the parties’ arguments and the relevant legal standards.
III. DISCUSSION
A. The Court Lacks Jurisdiction to Hear the Plaintiff‘s Tort Claims and the Plaintiff‘s DCHRA Claim
1. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction“).
Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Because subject matter jurisdiction focuses on the court‘s power to hear the claim, however, the court must give the plaintiff‘s factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. See
2. Sovereign Immunity Bars the Plaintiff‘s Claim of Fraudulent and Negligent Misrepresentation
The complaint charges that the defendants committed “fraudulent and negligent misrepresentation.” Am. Compl. ¶ 1. In particular, the plaintiff alleges that she “gave up a secure and stable job at the BEP‘s Office of Currency Standards (DC facility); moved 1,300+ miles across the country for a job relocation to the WCF in Fort Worth, Texas; and significantly altered her life ... only to find that the promises on which she based this life change were false.” Id. ¶ 36. The defendants argue that this claim is barred by the doctrine of sovereign immunity. See Defs.’ Mot. at 8-9. The plaintiff does not directly rebut this argument, instead reaffirming her view that “[t]he bottom line is [that] the defendants intentionally provided misleading information that deprived [her] of crucial information which unfairly and inappropriately impacted the risk assessment that a rational job applicant makes when considering [whether] to accept a job offer or agree to the terms of a job relocation.” Pl.‘s Opp‘n ¶ 46.
The general rule of sovereign immunity states that the United States cannot be sued without its consent. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The government may choose to waive its sovereign immunity by statute, however, and its waiver may be subject to any conditions that Congress chooses to impose. See Int‘l Eng‘g Co. v. Richardson, 512 F.2d 573, 577 (D.C. Cir. 1975). For example, the Federal Tort Claims Act (“FTCA“) expressly waives the United States’ immunity from suit as to certain common law torts. See
The FTCA does not waive the United States’ immunity for claims “arising out of ... misrepresentation, deceit, or interference with contract rights,” however.
3. Sovereign Immunity Bars the Plaintiff‘s DCHRA Claim
The plaintiff‘s DCHRA claim does not require extended discussion. Sovereign immunity bars DCHRA claims against the federal government. Jordan v. Evans, 404 F.Supp.2d 28, 31 (D.D.C. 2005) (dismissing a DCHRA claim against the federal Department of Commerce because it was barred by sovereign immunity). The D.C. Council, not Congress, enacted the DCHRA, and there is no federal statute that evinces Congress‘s intent to waive the United States’ immunity from suit under the DCHRA. Hoffman v. District of Columbia, 643 F.Supp.2d 132, 139 (D.D.C. 2009); Jordan v. Evans, 404 F.Supp.2d at 31. Consequently, the court dismisses the plaintiff‘s DCHRA claim.
4. The Plaintiff Does Not Oppose Dismissal of Her IIED Claim
The defendants argue that the Federal Employees’ Compensation Act (“FECA“),
As of 1991, a plaintiff may seek compensatory damages that stem from emotional distress as a component of a successful Title VII claim.
B. The Court Grants the Defendants’ Motion to Dismiss the Plaintiff‘s § 1981 Claim, the Plaintiff‘s Title VII “Pattern or Practice” Claim and the Plaintiff‘s Claim for Punitive Damages Under Title VII
1. Legal Standard for Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass‘n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing
Yet, “[t]o survive a motion to dismiss, 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, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, 78 S.Ct. 99, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of facts in support of his claim ... would entitle him to relief.“). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
In resolving a Rule 12(b)(6) motion, the court must treat the complaint‘s factual allegations—including mixed questions of law and fact—as true and draw all reasonable inferences therefrom in the plaintiff‘s favor. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
2. The Plaintiff Fails to State a Claim Under 42 U.S.C. § 1981
The defendants move to dismiss the plaintiff‘s § 1981 claim on the ground that the statute “is inapplicable to the federal government in employment cases.” Defs.’ Mot. at 5. The plaintiff responds that the “language [of] Section 1981 was expanded to include all harms flowing from race discrimination in the workplace,” and thus covers her claim. See Pl.‘s Opp‘n ¶ 34.
Congress passed
The protection offered under
The individual defendants to the present action are federal officials and employees of the Department of the Treasury, a federal government agency. Am. Compl. ¶¶ 1, 3. Because federal employees may not be held liable under
C. The Court Grants the Defendant‘s Motion to Dismiss the Plaintiff‘s Standalone Title VII “Pattern or Practice” Claim
The defendants argue that the court should dismiss the plaintiff‘s “pattern or practice” claim because that theory of recovery is only available to a member of a class action lawsuit. Defs.’ Mot. at 12. The plaintiff does not respond to this portion of the defendants’ argument. See generally Pl.‘s Opp‘n.
Generally, to prevail on a claim of discrimination under Title VII, a plaintiff must follow a three-part burden-shifting analysis known as the McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). The Supreme Court explained the framework as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee‘s rejection“.... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.
Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
Several circuits have held that the “pattern or practice” approach set forth in Teamsters does not apply to an individual plaintiff‘s non-class action suit. E.g., Celestine v. Petroleos de Venezuella S.A., 266 F.3d 343, 355 (5th Cir. 2001) (“The typical pattern or practice discrimination case is brought ... as a class action to establish that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers.“) (internal quotation marks omitted); Lowery v. Circuit City Stores, 158 F.3d 742, 760-61 (4th Cir. 1998), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999) (“[I]ndividuals do not have a private, non-class cause of action for pattern or practice discrimination“); Babrocky v. Jewel Food Co., 773 F.2d 857, 866-67 n. 6 (7th Cir. 1985) (noting that pattern-or-practice “suits, by their very nature, involve claims of classwide discrimination“); Hayes v. Chao, 592 F.Supp.2d 51, 56 (D.D.C. 2008) (explaining that pattern-or-practice claims under Title VII cannot be brought by an individual plaintiff); Major v. Plumbers Local Union No. 5, 370 F.Supp.2d 118, 127 (D.D.C. 2005) (same).
Because the plaintiff has not responded to the defendants’ argument, the court may conclude that the plaintiff has conceded her claim. Lewis v. District of Columbia, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011); Bonaccorsy v. District of Columbia, 685 F.Supp.2d 18, 24 (D.D.C. 2010). Normally, this court is loath to definitively rule on a question of law before both parties have had an opportunity to present their arguments via the adversarial process. See Herbert v. Nat‘l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). This is particularly true when adjudicating the claims of pro se plaintiffs, who are generally subject to less stringent standards in filing and maintaining their lawsuits than those plaintiffs who are represented by lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, myriad rulings from members of this court and elsewhere have unanimously affirmed the proposition that an individual plaintiff may not bring a standalone “pattern or practice” claim outside the context of a class action. The court is therefore satisfied that the adversarial process could not alter the court‘s legal conclusion, and the court grants the defendants’ motion to dismiss this claim.
As a final note, the court is careful to note that it only grants the defendants’ motion to dismiss inasmuch as the plaintiff purports to pursue a “pattern or practice” claim that is distinct from the McDonnell Douglas framework. Although an individual plaintiff may not rest solely on the “pattern or practice” approach when proving liability, an individual plaintiff may introduce evidence of systematic or general discrimination when developing her individual discrimination claims within the McDonnell Douglas framework. See
D. Title VII Does Not Allow the Plaintiff to Recover Punitive Damages Against the Federal Government
The defendants argue that the plaintiff may not seek punitive damages as a part of her Title VII claims. Defs.’ Mot. at 14. The plaintiff does not address this argument in her opposition. See generally Pl.‘s Opp‘n.
Title VII allows a plaintiff to seek compensatory damages against the federal government, but not punitive damages. See
Again, the court is generally reluctant to wade into a legal dispute before the adversarial process has had an opportunity to shed light on the question at hand. See Kerner, 404 U.S. at 520, 92 S.Ct. 594. In the face of Title VII‘s unambiguous statutory language, however, this court concludes that the plaintiff may not seek punitive damages as a component of her Title VII claims. Accordingly, the court grants this portion of the defendants’ motion to dismiss.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendants’ partial motion to dismiss. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 22nd day of September, 2011.
Billy R. KIDWELL, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
Civil Action No. 11-00778(BAH).
United States District Court, District of Columbia.
Sept. 22, 2011.