Fair v. U.S. Postal Service et al
ORDER granting 6 Motion to Dismiss. Signed by Chief Judge Frank D. Whitney on 7/9/2013. (Pro se litigant served by US Mail.)(eef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 3:12-CV-619
UNITED STATES POSTAL SERVICE )
THIS MATTER is before the Court on Defendant’s Motion to Dismiss (Doc No. 6)
Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(1), (4), (5), (6) and 12(h) for lack of
subject matter jurisdiction, insufficient process, insufficient service of process, and failure to
state a claim upon which relief can be granted. Because Plaintiff appears pro se, the Court
issued a Roseboro notice (Doc. No. 7) advising Plaintiff of her right to respond to Defendant’s
Motion to Dismiss on or before June 5, 2013. Plaintiff responded in timely manner (Doc. No. 8).
For the reasons stated below, Defendant’s Motion is GRANTED.
Plaintiff, who appears pro se, filed the instant Complaint on September 16, 2012, in this
Court alleging wrongful termination by the United States Postal Service (“USPS”) and
misrepresentation by her attorney in a separate EEOC case. (Doc. No. 1 at 3.) The Complaint
lists four defendants: the United States Postal Service (“USPS”), Humphrey Cummings,
Administrative Judge M.J. Clay, and R. Frost Branon. (Id. at 1.)
On June 26, 2009, Plaintiff filed an Equal Employment Opportunity (“EEO”) Complaint
of Discrimination against her former employer, the USPS, alleging sexual harassment and
discrimination. (Doc No. 6, Exh. A.) Plaintiff hired Defendant Cummings to represent her
during her EEO proceedings, and Defendant Branon represented the USPS. (Id., Exh. B.)
Defendant J.M Clay, an Administrative Judge, oversaw Plaintiff’s claim before the EEOC. (Id.)
On July 6, 2012, Plaintiff accepted a settlement offer in her EEO case. (Id.) The material
terms of the agreement provided that “the Complainant will be allowed to resign in lieu of
termination and that all discipline will be removed.” (Id.) In addition, “[i]n exchange for the
terms outlined above, Complainant agreed to withdraw her EEO complaint(s) and not pursue
these claims in any other forum.” (Id.)
At the conclusion of the EEO hearing, Admin. Judge Clay stated: “Now this case is
officially settled as of right now, as of today. So it’s not, oh, I went home, changed my mind . . .
. The actual document, settlement agreement document is just a formalization of the settlement .
. . . [T]he settlement is deemed in place at this point.” (Id., Exh. C.) However, on or about June
28, 2012, Plaintiff refused to sign a copy of the Settlement Agreement and General Release,
claiming that she had “changed her mind and no longer agreed to the terms . . . .” (Id., Exh. B.)
Subsequently, Plaintiff filed this Complaint alleging that the USPS wrongfully terminated
her employment by not “abid[ing] by the rules and regulations of the law and by FMLA rules.
They falsely fired me . . . and deprived me of my rights.” (Doc. No. 1 at 3.) She further
contends that Defendant Cummings, while representing her on her EEOC charge, misrepresented
her and treated her unfairly by failing to “wholeheartedly, faithfully, [and] diligently work in
good faith” on her behalf. (Doc. No. 1 at 3.) Plaintiff also alleges that she was “misrepresented
and unfairly treated” by Defendants Clay and Branon, and that they “pressured” her into settling
her EEOC claim “for something [she] did not want.” (Id. at 2-3.) On October 11, 2012, this
Court dismissed Plaintiff’s claims against Defendants Cummings and Clay due to lack of subject
matter jurisdiction. (Doc. No. 3 at 2.)
“Although Plaintiff’s Complaint is not entirely clear, due to [her] pro se status, it must be
read generously.” Keene v. Thompson, 232 F. Supp. 2d 574, 578 (M.D.N.C. 2002). Plaintiff
appears to state three claims. She specifically alleges a wrongful termination claim against the
USPS and what appears to be a legal malpractice claim against Cummings. Construed broadly,
Plaintiff also appears to allege a legal malpractice claim against Branon. Because the Court
already dismissed Cummings from this lawsuit, the Court will only address Plaintiff’s claims
against the USPS and Branon.
A. Wrongful Discharge Claim Against the USPS
1. Improper Party
“[T]he only proper Defendant in a [Title VII] action brought by a federal employee is the
head of the agency.” Id. at 581; See also Ellis v. U.S. Postal Service, 784 F.2d 835, 838 (7th Cir.
1986) (“[I]n a Title VII action alleging discrimination in the Postal Service, the only proper
defendant is the head of the agency—the Postmaster General.”). Therefore, the proper party in
this action is the Postmaster General, not the USPS. However, as fully explained below, even if
the Court granted Plaintiff leave to amend her Complaint to substitute the Postmaster General as
the proper defendant, Plaintiff’s Complaint would still be dismissed because this Court lacks
subject matter jurisdiction over the claim.
2. Subject Matter Jurisdiction
a. Standard of Review
Under Fed. R. Civ. P. 12(b)(1), the Court must dismiss a complaint if it lacks subject
matter jurisdiction. The plaintiff has the burden of demonstrating subject matter jurisdiction.
Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991). In considering a challenge to subject matter jurisdiction, “the district court is to regard
the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary judgment.” Id. Unlike in a 12(b)(6)
motion, “where there is a presumption reserving the truth finding roles to the ultimate factfinder,
the court in a 12(b)(1) hearing weighs the evidence to determine its jurisdiction.” Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
b. Failure to Exhaust Administrative Remedies
The Court lacks subject matter jurisdiction over Plaintiff’s wrongful termination claim
because Plaintiff failed to exhaust her administrative remedies. “[A] failure by the plaintiff to
exhaust administrative remedies concerning a Title VII claim deprives the federal courts of
subject matter jurisdiction over the claim.” Marsh v. CBD Media Corp., WL 3151946, at *3
(W.D.N.C. Sept. 24, 2009) (quoting Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir.
2009)). “Title VII claims may only be brought in federal court after the EEOC has investigated
the claim, made a determination as to the claim’s merit, and issued a right-to-sue notice.” Davis
v. North Carolina Dept. of Correction, 48 F.3d 134, 138 (4th Cir. 1995) (citing 42 U.S.C. §
2000e-5(b)). The Fourth Circuit has “long held that receipt of, or at least entitlement to, a rightto-sue letter is a jurisdictional prerequisite that must be alleged in a plaintiff’s complaint. Id. at
140 (citing United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979)).
Here, Plaintiff has completely failed to demonstrate that she exhausted administrative
remedies. She filed her Complaint with the EEOC on June 26, 2009; the parties resolved the
issue with a settlement agreement before a judge on June 27, 2012; and Plaintiff filed the instant
Complaint on September 18, 2012. Plaintiff has failed to show that she was issued, or entitled
to, a right-to-sue letter. Moreover, in light of the settlement agreement, Plaintiff has failed to
even show any reviewable, final decision from the EEOC. Accordingly, to the extent that
Plaintiff’s Complaint alleges a wrongful termination claim against the USPS, Plaintiff’s
Complaint is dismissed for lack of subject matter jurisdiction.
Additionally, in her response to Defendant’s Motion to Dismiss, Plaintiff “ask[s] for a
continued case.” To the extent that Plaintiff asks for a stay while she exhausts administrative
remedies, that request is denied.
3. Failure to State a Claim under 12(b)(6)
a. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint
“must provide enough facts to state a claim to relief that is plausible on its face.” Robinson v.
Am. Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). The court must “accept as true all well-pleaded allegations” and “construe the
factual allegations in the light most favorable to the plaintiff.” Randall v. United States, 30 F.3d
518, 522 (4th Cir. 1994) (citing Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
However, the Court is “not so bound by the plaintiff’s legal conclusions, since the purpose of
Rule 12(b)(6) is to test the legal sufficiency of the complaint.” Id. While a plaintiff alleging
employment discrimination need not “plead facts that constitute a prima facie case in order to
survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002),
‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’”
Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Twombly, 550
U.S. at 555 (2007)). Furthermore, documents filed by a pro se party must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
b. Breach of Plaintiff’s Settlement Agreement
This Court agrees with the Government that Plaintiff’s EEO complaint should not be
reinstated because Plaintiff fails to allege or plausibly state a claim for breach of her settlement
agreement and fails to show how this court would have jurisdiction over such a claim. See
Frahm v. United States, 492 F.3d 258, 262 (4th Cir. 2007) (“Because neither the settlement
agreement nor a statute allow [plaintiff] to sue the government for breach of the settlement
agreement, her action was properly dismissed.”). EEO regulations authorize reinstatement of a
complaint only when a settlement agreement has been breached. 29 C.F.R. § 1614.504(a).
Plaintiff’s Complaint is completely devoid of any allegations that the USPS or the Postmaster
General breached the settlement agreement. Therefore, to the extent that Plaintiff’s Complaint
seeks to have her original EEO action reinstated, the Court dismisses that claim without
prejudice for failure to state a claim for relief.
B. Failure to State a Claim for Legal Malpractice Against Branon
The Court has already explained the 12(b)(6) standard of review applicable to this portion
of Defendant’s Motion to Dismiss.
The Court has reviewed the allegations pertaining to
Defendant Branon and finds that Plaintiff has failed to state any cognizable claim against him.
Plaintiff alleges in her Complaint that Branon misrepresented her and treated her unfairly during
her EEO action and settlement negotiations; however, there is no plausible claim against Branon
because Plaintiff has not set forth any plausible allegation to show that Branon, as opposing
counsel in her EEO action, owed any duty to Plaintiff. Accordingly, to the extent that Plaintiff
alleges a claim for legal malpractice against Branon, Plaintiff’s Complaint fails to state a claim
upon which relief can be granted and is dismissed pursuant to Rule 12(b)(6).
For the reasons stated above, Plaintiff’s Complaint fails for lack of subject matter
jurisdiction and failure to state a claim upon which relief may be granted. Because dismissal is
appropriate under Rules 12(b)(1) and 12(b)(6), Defendant’s 12(b)(4) and (5) arguments are moot,
and this Court does not need to address them.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
Complaint (Doc. No. 6) is GRANTED, and Plaintiff’s Complaint is DISMISSED without
IT IS SO ORDERED.
Signed: July 9, 2013