Johnson v. Wormuth

Filing 31

MEMORANDUM OPINION. Signed by Judge Corey L. Maze on 1/17/2023. (SRD)

FILED
2023 Jan-17 AM 08:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
SHERLYN JOHNSON,
Plaintiff,
v.

Case No. 1:22-cv-36-CLM

CHRISTINE WORMUTH,
Secretary of the Army,
Department of the Army,
Defendant.

MEMORANDUM OPINION
Sherlyn Johnson sues the Secretary of the Army, alleging violations of
42 U.S.C. § 1981. Her counts are labeled: “VIOLATION OF 42 U.S.C. § 1981
DISCRIMINATION,” and “VIOLATION OF 42 U.S.C. § 1981 RETALIATION.”
(Doc. 24, pp. 10-11). And in her brief opposing the Secretary’s motion to dismiss
those counts (doc. 25), Johnson asserts that her complaint is “within the
Court’s jurisdiction to hear her claims of discrimination and retaliation
pursuant to 42 U.S.C. § 1981.” (Doc. 27, pp. 1-2).
The court highlights Johnson’s citations of § 1981 because both circuit
precedent and the text of § 1981 make clear that “a plaintiff cannot maintain
a § 1981 claim against a federal defendant acting under color of federal law.”
Lee v. Hughes, 145 F.3d 1271, 1277 (11th Cir. 1998); see 42 U.S.C. § 1981(c).
Because that’s the only type claim that Johnson pleaded, the court GRANTS
the Secretary’s motion to dismiss (doc. 25).
STATEMENT OF FACTS
Plaintiff Sherlyn Johnson is a former civilian employee of United States
Army. She worked as a Heavy Mobile Equipment Mechanic at the Anniston
Army Depot in Anniston, Alabama. Frankly, Johnson’s factual allegations
about her time at the Anniston Army Depot are hard to parse. But as it must,
the court construes all facts and presents the narrative in the light most

favorable to Johnson. See Pleming v. Universal-Rundle Corp., 142 F.3d 1354,
1356 (11th Cir. 1998).
Johnson alleges that in 2018, she was injured on the job, and removed
from duty for about three weeks. She says she was harassed about the injury,
and improperly required to use her own leave for doctor’s appointments,
causing her to lose pay. She also claims that after her injury, she was ordered
to perform tasks that exceeded her medical restrictions.
Johnson states that on April 1, 2019, she was inappropriately suspended
for Discourtesy and Failure to Properly Request Leave (“AWOL”), after an
employee falsely accused her of being AWOL for 6 minutes. Johnson seems to
concede that she was late, but says that other employees were never penalized
for the same behavior. (Doc. 24, p. 8). Johnson claims that the suspension was
retaliation for complaining about race discrimination and harassment, and for
engaging in protected activity. Johnson claims that she engaged in protected
activity before April 1, 2019. But she never explains what that activity might
be. (See Doc. 24, p. 6).
Johnson alleges that on at least two other occasions, an employee lied
about her, and caused her to be improperly charged AWOL. (See Doc. 24, p. 7
(discussing an August 2019 incident), Doc. 24, p. 8 (discussing a December
2019 incident)).
At some point, Johnson was placed in a temporary position as an
accommodation for a work-related injury. But in early 2020, after a proceeding
before an Administrative Judge of the Equal Employment Opportunity
Commission (“EEOC”), Johnson was informed that her temporary position was
ending, and she would be returned to a Heavy Mobile Equipment Repairer role.
Johnson claims the duties required by that position exceeded her medical
restrictions.
Soon after, Johnson requested leave. But she claims her employer failed
to respond promptly, causing her to take leave without pay.

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Johnson then filed a formal Complaint of Discrimination with the EEOC.
An EEOC Administrative Judge issued summary judgment in the Army’s
favor, which the EEOC Office of Federal Operations affirmed.
Johnson then sued the Secretary of the Army, Christine Wormuth,
alleging violations of 42 U.S.C. § 1981. (Doc. 1). Johnson sued Wormuth in her
official capacity, and her operative complaint states two counts that contain
three distinct legal claims: (1) race discrimination, (2) gender discrimination,
and (3) unlawful retaliation. (Doc. 24).
Wormuth asks the court to dismiss Johnson’s Third Amended Complaint
under Rule 12(b)(1) for lack of jurisdiction, and Rule 12(b)(6) for failure to state
a claim upon which relief can be granted. (Doc. 25). Johnson opposes the
motion, and raises new factual allegations in her brief in opposition. But the
court cannot consider these facts because “a complaint may not be amended by
briefs in opposition to a motion to dismiss.” Gibbons v. McBride, 124 F. Supp.
3d 1342, 1381 (S.D. Ga. 2015); see also Huls v. Llabona, 437 F. App’x 830, 832
n.5 (11th Cir. 2011) (holding that an argument raised for the first time in
response to defendant’s motion to dismiss, instead of in an amended complaint,
was not properly raised before the district court and would not be considered
on appeal).
LEGAL STANDARD
“The party invoking the court’s jurisdiction bears the burden of
establishing federal jurisdiction.” Alliant Tax Credit Fund XVI, Ltd. v.
Thomasville Cmty. Hous., LLC, 713 F. App’x 821, 824 (11th Cir. 2017) (citing
McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002).

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DISCUSSION
Wormuth asks the court to dismiss Johnson’s Third Amended Complaint
in its entirety for (1) lack of jurisdiction, and (2) failure to state a claim upon
which relief can be granted. Because federal courts are “obliged to inquire into
subject matter jurisdiction . . . whenever it may be lacking,” the court examines
the basis of its jurisdiction before proceeding to whether Johnson has stated a
claim. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999);
see also Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir.
1981).
1. Johnson’s pleading: Wormuth argues that the court lacks subject
matter jurisdiction to adjudicate all of Johnson’s claims because the United
States government has not waived sovereign immunity to claims brought
under 42 U.S.C. § 1981. Johnson contends, in response, that 42 U.S.C. § 2000
et seq. (“Title VII”) provides an express waiver of sovereign immunity for claims
brought by federal employees. Both parties are right, but they are talking
about different statutes. So the real issue is whether Johnson’s claims are
alleged as violations of Section 1981, or as violations of Title VII.
On the first page of her Third Amended Complaint (“Complaint”),
Johnson states that the action is brought to redress the violation of her rights
“under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e
et – seg.; and the Civil Rights Act of 1991, 42 U.S.C. 1981a.” (Doc. 24, p. 1)
(emphasis added). But later in the Complaint, Johnson states in bold,
underlined font that her claims are brought as violations of 42 U.S.C. § 1981.
Count I is labeled: “VIOLATION OF 42 U.S.C. § 1981 DISCRIMINATION.”
(Doc. 24, p. 10). Count II is labeled: “VIOLATION OF 42 U.S.C. § 1981
RETALIATION.” (Doc. 24, p. 11). And in her brief opposing this motion,
Johnson asserts that her complaint is “within the Court’s jurisdiction to hear
her claims of discrimination and retaliation pursuant to 42 U.S.C. § 1981.”
(Doc. 27, pp. 1-2).
Based on Johnson’s chosen language, the court finds that each of
Johnson’s claims are pleaded under § 1981 (and not under Title VII).

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2. Immunity: The United States is immune from being sued unless it has
consented to suit by statute. See United States v. Dalm, 494 U.S. 596, 608
(1990). In other words, “[a]bsent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S.
471, 475 (1994). Because sovereign immunity is jurisdictional, the terms of the
United States’ consent to be sued in any court set the parameters of that court’s
jurisdiction to entertain the suit. Id.
Congress says that Section 1981 applies “only against impairment of
equal rights, or violations of federal or constitutional rights, under color of state
law.” 42 U.S.C. § 1981(c) (emphasis added). And the Eleventh Circuit has held
that the United States has not waived sovereign immunity for claims brought
under § 1981. See United States v. Timmons, 672 F.3d 1373, 1380 (11th Cir.
1982). As a result, “a plaintiff cannot maintain a § 1981 claim against a federal
defendant acting under color of federal law.” Lee v. Hughes, 145 F.3d 1271,
1277 (11th Cir. 1998).
Because Johnson states § 1981 claims against a federal defendant for
actions taken under color of federal law—and she asserts no other claims—the
court must dismiss her complaint. Osahar v. Postmaster General of U.S. Postal
Serv., 263 Fed. Appx. 753, 763 (11th Cir. 2008) (citing Lee v. Hughes, 145 F.3d
1272, 1277 & n.5) (11th Cir. 1998)).
3. Other jurisdictional sources: Johnson tries to avoid this jurisdictional
bar by citing federal statutes in which the United States has waived sovereign
immunity. But again, Johnson did not plead claims under those statutes, so
those statutes cannot confer jurisdiction on this court.
For example, Johnson pleaded in her complaint that the court has
jurisdiction under the Federal Tort Claims Act. (Doc. 24, p. 2). But that statute
provides a remedy for “injury or loss of property, or personal injury or death
arising or resulting from the negligent or wrongful omission of any employee
of the Government . . .” 28 U.S.C. § 2679(b)(1). Johnson’s Complaint does not
allege any tort claims, so the Federal Tort Claims Act is irrelevant and thus
cannot provide the court with jurisdiction.

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Johnson also pleaded that the court has jurisdiction under Title VII.
(Doc. 24, p. 2). But Johnson does not cite or mention Title VII in either of her
counts. Instead, Johnson specifically pleads “violation[s] of 42 U.S.C. § 1981.”
(Doc. 24, pp. 10-11). Johnson might be able to state a plausible claim under
Title VII, but she does not do so in her Third Amended Complaint.
—
When a court lacks jurisdiction, “the only function remaining to the court
is that of announcing the fact and dismissing the cause.” Univ. of S. Ala., 168
F.3d at 410 (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)).
As explained above, the court lack jurisdiction, so the court GRANTS
Defendant Wormuth’s motion to dismiss (doc. 25). The court will enter a
separate order that carries out this ruling by DISMISSING WITHOUT
PREJUDICE all claims against Wormuth.
DONE on January 16, 2023.

_________________________________
COREY L. MAZE
UNITED STATES DISTRICT JUDGE

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