Todd v. U.S. Department of Justice

Filing 28

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 5/7/12. (KGE, )

FILED
2012 May-07 AM 11:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAMI TODD, a/k/a Tamarah T. }
Grimes,
}
}
Plaintiff,
}
}
v.
}
}
ERIC H. HOLDER, JR., in his }
official capacity as Attorney }
General of the United States, }
}
Defendant.
}

CIVIL ACTION NO.
11-AR-3811-S

MEMORANDUM OPINION
Any pro se plaintiff who sues an agency of the United States
does not need to admit, as this plaintiff does, that she needs a
lawyer.

This even more true when the agency is the Department of

Justice (“DOJ”).

It would take a very good lawyer, with a lot of

time, to undertake plaintiff’s representation in this case with any
possibility of success.
has a lawyer.

This may explain why plaintiff no longer

Although she

has worked for a United States

Attorney, whose office she now complains about, it quickly becomes
obvious that she is no lawyer and badly needs one.

There are many

reasons why an excellent and dedicated lawyer could not win this
case.

The court will address some of them, not necessarily in the

order

of

their

importance.

The

well

reasoned

findings

and

conclusions of the Equal Employment Opportunity Commission (“EEOC”)
Administrative Judge hereinafter referred to would have constituted

-1-

a final and binding adjudication of the dispute if plaintiff had
not filed this action as her only alternative to taking an appeal
to the EEOC.

The court will give the opinion of the Administrative

Judge no deference and will examine plaintiff’s case de novo as if
the

dispute

had

not

already

administrative labyrinth.

wandered

at

length

through

the

There is, of course, a difference

between an appellate “review” by the EEOC of an administrative
finding and a separate civil action filed in a United States
District Court.

Either procedure was allowed to plaintiff.

filed civil action in this court.

She

It will be examined as if it had

been filed here in the first place.
The court now has before it the motion filed on January 27,
2012, by defendant, Eric H. Holder, Jr. (“Holder”), in his official
capacity as Attorney General of the United States, to dismiss the
action of plaintiff, Tami Todd, a/k/a Tamarah T. Grimes (“Todd”),
or alternatively, for summary judgment. (Doc. 7)1.

Attached to

Holder’s motion are materials outside the pleadings, including: (1)
declaration

of

Robert

Abraham,

supervisory

attorney

with

the

Complaint Adjudication Office of DOJ (Doc. 9-1); (2) United States
Postal Service “Track & Confirm” receipt (Doc. 9-1, at 5); (3)
certified mail return receipt (Doc. 9-1, at 7); (4) declaration of
Kimya Jones, agency representative in the pending Merit Systems

1

Reference to a document number, [“Doc.___”], refers to the
number assigned to each document as it is filed in the court’s
record.
-2-

Protection Board (“MSPB”) appeal (Doc. 9-2); (5) final agency
action and notice of right of appeal to the EEOC or court action
(“right-to-sue letter”) (Doc. 9-3); and (6) decision by the EEOC
Administrative Judge Clarence Bell (Doc. 9-3, at 5).
Pursuant to Rule 12(d), F.R.Civ.P., Holder’s motion to dismiss
has been deemed a motion for summary judgment under Rule 56,
F.R.Civ.P.

Both parties have treated it as such, and if it were

not treated as such by them, the court would nevertheless grant
summary judgment sua sponte for defendant under the authority of
Rule 56(f)(3), F.R.Civ.P.
After Todd filed a responsive brief (Doc. 11), Holder replied
(Doc. 12).

Subsequently, and pursuant to the court’s order (Doc.

16), both parties filed supplemental submissions (Docs. 20,22) in
response to questions posed by the court during an oral hearing
held on March 21, 2012.

Upon consideration of the entire record,

the court finds Holder entitled to summary judgment.
Todd has also filed several motions to amend her complaint
(Docs. 17,19,21,25).

She seeks to reframe her complaint, to add

new causes of action, and to name new parties, including fictitious
parties.

Todd’s motions to amend will be denied for several

reasons, some of which will hereinafter be discussed.
RELEVANT FACTS
Todd was employed by DOJ (of which Holder is the chief
executive and administrative officer) at the Office of United

-3-

States Attorney for the Middle District of Alabama (“USAO MD AL”)
in Montgomery, Alabama from April 20, 2003 until June 9, 2009, when
she was removed from federal service.2

The events giving rise to

Todd’s complaint or complaints began around July 5, 2007.

On that

date, Todd filed a pre-complaint with the EEO staff in Washington,
D.C., alleging discrimination by the DOJ on the basis of gender and
sexual harassment.

Todd claims that retaliation against her began

immediately and escalated over time.

On November 1, 2007, Todd

executed an Agency Agreement to Mediate in regard to her EEO
complaint.

The mediation agreement contained a confidentiality

clause pursuant to 5 U.S.C. § 574.

Todd alleges that confidential

information she disclosed to the mediator was later used against
her by the DOJ in a retaliatory referral for criminal investigation
to the DOJ Office of Inspector General (“OIG”).

Todd further

alleges that this information was both false and in violation of 5
U.S.C. § 574.
In early December 2007, Ronald S. Gossard, Jr. (“Gossard”),
criminal

investigator

investigation of Todd.

for

DOJ

OIG,

conducted

an

internal

On March 19, 2008, Melvin Hyde (“Hyde”),

USAO for the Middle District of Georgia, declined Gossard’s request

2

Todd appealed her termination to the MSPB on the basis of
reprisal for participation in protected activity.
Todd alleges
that she engaged in two types of protected activity: (1) opposition
to unlawful activity, and (2) opposition to discriminatory conduct
and practices in the EEOC process. The issue of Todd’s termination
is currently under the jurisdiction of the MSPB.
-4-

for criminal prosecution of Todd, citing lack of prosecutorial
merit.3

On March 27, 2008, Todd, under threat of termination, was

compelled to submit to a so-called Kalkines4 interview by Gossard.
On or about June 12, 2008, Gossard released the OIG Report of
Investigation

(“OIG

evidence

been

had

misconduct by Todd.

Report”),
developed

which
to

stated

support

that

the

insufficient

allegations

of

However, Todd alleges that Gossard continued

to use the disputed and unsubstantiated allegations as “facts” to
support the adverse conclusion about Todd that he had already
reached.
her

Todd alleges that the DOJ continues to retaliate against

through

obstruction

of

her

efforts

to

obtain

gainful

employment, disseminating false information from the OIG Report to
potential employers.

Todd has not named any prospective employer

to which the alleged false information has been disseminated.
Todd filed her instant action after she received the final
agency decision, which adopted and confirmed the adverse order

3

In May 2008, Hyde declined for the second time the request of
Gossard for a criminal prosecution of Todd, again citing lack of
prosecutorial merit.
4

Todd uses the phrase “Kalkines interview” throughout her
pleadings. Under Kalkines v. United States, 473 F.2d 1391 (Fed.
Cl. 1973), a government employee can be terminated for not replying
to employment or performance-based inquiries if he is adequately
informed both that he is subject to discharge for not answering and
that his replies (and their fruits) cannot be used against him in
a criminal prosecution. Todd has not stated whether or not she,
prior to allegedly being subjected to a “Kalkines interview”, was
duly advised that she would have immunity with respect to her
answers. She has not alleged any violations or otherwise unlawful
claims against defendant as to the “Kalkines interview.”
-5-

entered by EEOC Administrative Judge Bell.

In her complaint, Todd

makes claims of retaliation under Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as well as the
Civil Rights Act of 1991, 42 U.S.C. § 1981, and violations of the
Privacy Act of 1974.

Todd alleges that DOJ subjected her to

discrete acts of retaliation because of her opposition to allegedly
unlawful

and

discriminatory

practices

and

participation in prior protected activity.

because

of

her

Todd alleges that

Patricia Snyder Watson (“Watson”), former First Assistant United
States Attorney for the Middle District of Alabama, unlawfully
obtained

and

confidential

willfully
security

disclosed

file

in

information

violation

of

5

from

U.S.C.

Todd’s
§

552.5

Besides the unnamed defendants she seeks to sue, Todd, as she must,
sues Holder in his official capacity on a theory of respondeat
superior as liable for the allegedly wrongful acts of DOJ employees
and/or other government employees.

Todd also alleges that USAO MD

AL unlawfully maintained a system of records containing a copy of
Todd’s security file.6

Todd requests unspecified damages with

respect to all these violations including her statutory right to

5

Watson admits that she had accessed Todd’s file, but that it
was in order to prepare for giving her sworn statement to the EEOC
investigator in April 2008.
6

Todd incorrectly cites to 5 U.S.C. § 553(i)(3) in her
complaint. (Doc. 1, ¶ 69). The correct statute appears to be 5
U.S.C. § 552a(e)(4). However, as set out below, Todd’s Privacy Act
claims, if deemed made against a proper defendant, are barred by
the two year statute of limitations.
-6-

privacy. She seeks injunctive relief, compensatory damages, costs,
and

attorney’s

fees

(although,

as

stated

supra,

she

has

no

attorney).
Because the Rule 56 motion turns largely on procedural matters
and facts not within the evidence presented to or considered by the
Administrative Judge, further elaboration of the underlying facts
alleged by Todd is unnecessary.
DISCUSSION
Motions to Amend Complaint and Exclusivity of Remedy
In Todd’s “Corrected First Amendment to Plaintiff’s Complaint”
(Doc. 25), she says: “Plaintiff alleges that the defendants are
federal officials who deprived plaintiff of her civil rights under
color of law and subjected plaintiff to unlawful discrimination,
harassment, a hostile work environment and retaliation predicated
upon plaintiff’s participation in the agency EEO process.” (Doc.
25, at 7).

In addition to Todd’s retaliation claims brought under

Title VII and her Privacy Act claims, she invokes 1) 28 U.S.C. §
1331, 2) the Civil Rights Act of 1991, 3) 28 U.S.C. § 1658, 4)
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), and 5) the Fourth, Fifth, and Fourteenth
Amendments to the U.S. Constitution. (Doc. 25, at 11).

All of her

proposed amendments not only fail to cure the defects in her
original complaint, but are futile, as will hereinafter become more
apparent.

Todd’s motions for leave to amend will be denied.
-7-

To

grant them would not only create more confusion than now exists,
but would be entirely inconsistent with this court’s subsequent
holding that the action is, for the most part, barred by the 90-day
statute of limitations.
Title VII, and the Civil Service Reform Act of 1978 (“CSRA”),
provide the exclusive remedy for a federal employee in which the
employee alleges discrimination or harassment based on race, color,
religion, sex or national origin, as well as retaliation, occuring
within the context of their federal employment. See 42 U.S.C. §
2000e-16; Brown v. General Services Admin., 425 U.S. 820, 829
(1976)(Title

VII

provides

the

“exclusive,

pre-emptive

administrative and judicial scheme for the redress of federal
employment discrimination”); United States v. Fausto, 484 U.S. 439
(1988); Canino v. U.S. E.E.O.C., 707 F.2d 468, 472 (11th Cir. 1983);
cf. Bush v. Lucas, 462 U.S. 367 (1983).

As such, Title VII’s and

the CSRA’s exclusivity prevents Todd from invoking or relying on
any federal statutory or constitutional provisions or theories in
support of her claims of discrimination except those available
under

Title

VII.

See

Stephens

v.

Dept.

of

Health

and

Human

Services, 901 F.2d 1571, 1575 (11th Cir. 1990)(citing Fausto and
holding that CSRA is the is the exclusive remedy of the federal
employee).

Merely recasting her allegations as “constitutional

violations” does not help. See Stephens, 901 F.2d at 1576.

Citing

Schweiker v. Chilicky, 487 U.S. 412, 413 (1988), the Stephens court
-8-

noted that the CSRA provides ‘adequate remedial mechanisms’ for
alleged constitutional violations that may occur in

the course of

its administration. Id. See also Ferry v. Hayden, 954 F.2d 658, 661
(11th

Cir.

1992)(noting

that

CSRA

encompasses

constitutional

claims); Dynes v. Army Air Force Exchange Service, 720 F.2d 1495,
1498 (11th Cir. 1983)(declining to create a new remedy “regardless
of which constitutional right has been violated”).
Without naming them, Todd seeks to add defendants in their
individual capacities and to sue them under Bivens.

There is no

such nonstatutory remedy for claims arising out of a federal
employee’s

“employment

comprehensive

relationship

procedural

and

that

substantive

[was]

governed

provisions

by

giving

meaningful remedies against the United States.” Dynes, 720 F.2d at
1498.

The Eleventh Circuit has “recognized that the comprehensive

statutory

scheme

established

by

Congress

relating

to

federal

employment (CSRA) precludes the maintenance of job-related Bivens
actions by federal employees.” Lee v. Hughes, 145 F.3d 1272, 1275
(11th Cir. 1998)(citing Stephens v. Dept. of Health and Human
Services, 901 F.2d 1571, 1577 (11th Cir. 1990)).

Because Todd’s

purported constitutional claims and purported Bivens claims would
eventually have to be dismissed as a matter of law, her motions to
amend her complaint to add them must be denied as futile.

A

federal employee’s being allowed by statute to file a separate
action in federal court to consider her discrimination claims does
-9-

not open the door for her to present to the court entirely new
claims against new entities on new theories.

It has an important

de novo component but does not invite the kitchen sink.
Title VII
Title VII clearly provides that within 90 days after receipt
of a right-to-sue letter “a civil action may be brought against the
respondent named in the charge.” 42 U.S.C. § 2000e-16(c); see also
42 U.S.C. § 2000e-5(f)(1).
here was Holder.
limitations.

The “respondent named in the charge”

This 90-day filing period is a statute of

In order for Todd to maintain her suit, she has the

burden of establishing that she filed her complaint within 90 days
of her receipt of the right-to-sue letter issued by the DOJ
Complaint Adjudication Office. See Green v. Union Foundry Co., 281
F.3d 1229, 1233 (11th Cir. 2002).

Holder’s affirmative defense of

the statute of limitations places the burden on Todd to establish
that she met the 90-day filing requirement. Id. at 1234.
It

is

undisputed

that

Todd

exhausted

her

internal

administrative remedies, that the DOJ found against her on May 26,
2011, and that the Complaint Adjudication Office mailed her a
right-to-sue letter on July 26, 2011.

Todd disputes the date upon

which she “received” this right-to-sue letter .
Although Todd plausibly says that she did not physically and
personally “receive” the letter in her hands until August 4, 2011,
Holder has presented incontrovertible evidence to demonstrate that
-10-

the letter was legally delivered, and thus “received,” within the
meaning of the relevant statute, on August 3, 2011.7

The evidence

presented by Holder on this fact is uncontested.

Todd merely

states that “no evidence has been introduced to show that the
parcel was delivered to plaintiff on August 3, 2011.” (Doc. 22, at
2). Todd says that the right-to-sue letter was not actually in her
hands until August 4, 2011.

She presents no evidence to explain

why she did not “receive” it on August 3, as proven by the
certified mail receipt executed on August 3, 2011.
contention

in

this

regard

is

insufficient

to

Her conclusory
overcome

the

presumption that a properly addressed piece of certified mail was
received, as reflected by the receipt, on the date the receipt was
signed.

See Law v. Hercules, Inc., 713 F.2d 691, 693 (11th Cir.

1983)(per curiam)(holding 90-day period began when claimant’s 17year-old son signed the return receipt for EEOC’s right-to-sue
letter in spite of claimant’s contention that he did not see the
letter until one or two days later); see also Scholar v. Pacific
Bell, 963 F.2d 264, 267 (9th Cir. 1992).
The statute makes clear that the 90-day period runs from the
“giving of such notice” rather than from the date the notice is
finally placed in the hands of the addressee.

7

When Todd finally

See Doc. 9, DEX 1, certified mail receipt as well as tracking
information from United States Postal Service website. The rightto-sue letter was mailed to Todd at P.O. Box 19962, Birmingham,
Alabama. Todd uses this same address in the instant action.
-11-

saw the right-to-sue letter, on August 4, 2011, and visually
observed that it had been sent via certified mail to her post
office box, and was signed for her by “J King” on August 3, 2011,
she was obligated to understand that the 90-day period had already
started to run.
action

on

It expired on November 1, 2011.

November

2,

2011,

one

day

after

Todd filed her
the

statute

of

limitations had expired. “[A]n action filed within 91 days is still
time barred.” Prophet v. Armco Steel, Inc. 575 F.2d 579, 580 (5th
Cir. 1978).8
Todd conspicuously has not sworn that she had not given her
post office box key to another person or persons on or prior to
August 3, 2011, creating ostensible authority to access her box and
to receipt for her mail.

The fact that someone had her key on

August 3, 2011 and brought her mail to her proves ostensible
authority.

Todd has said, not under oath, that she does not know

“J King,” but she admits that she has routinely given her post
office box key to family members to collect her mail.

According to

her, such persons would routinely place her mail on her bed after
retrieving it from her box.

This is entirely consistent with what

happened here.

8

In Bonner v. City of Prichard Ala., 661 F.2d 1206, 1209 (11th
Cir. 1981)(en banc), the Eleventh Circuit adopted as binding
precedent all decisions from the former Fifth Circuit handed down
prior to October 1, 1981.
-12-

Todd has not alleged trickery or foul play, either by the DOJ
or by the EEOC, much less offered any evidence of it. Todd’s
unsworn statements are not sufficient to rebut the unequivocal
evidence presented by Holder.9
Todd

alternatively

equitably tolled.

requests

that

her

filing

deadline

be

She argues:

To the extent that Defendant provided erroneous,
inaccurate or false information to Plaintiff regarding
the appeals process, information upon which Plaintiff
relied in the timely filing of her Complaint, Plaintiff
asserts equitable tolling due to Defendant’s conduct in
causing any delay of Plaintiff’s filing of her civil
action on November 2, 2011 as Defendant clearly informed
Plaintiff that she had 90 days from the receipt of the
[right-to-sue] letter to file a civil action in Federal
Court.
(Doc. 11, at 4).

The court finds no evidence of “erroneous,

inaccurate or false information.”

Todd asks the court to ignore

presumptions and Holder’s overwhelming evidence, and to speculate
with her that something mysterious happened that somehow relieved
her of the obligation to file her action on or before the 90th day
after her right-to-sue letter was “received” and provided her
notice within the meaning of the statute.

9

With his motion, Holder submitted a copy of the certified mail
return receipt and a copy of the United States Postal Service
“Track & Confirm” receipt. (Doc. 9). Both pieces of evidence show
delivery on August 3, 2011. With his supplemental response, Holder
submitted the declaration of Joel T. Morrison, IV, acting manager
of the Green Springs Post Office, which houses the post office box
at issue. (Doc. 20).
-13-

Equitable tolling is “reserved for extraordinary facts” and is
to be applied sparingly. Jackson v. Astrue, 506 F.3d 1349, 1354
(11th

Cir.

2007).

Misunderstanding

the

This

is

law,

even

extraordinary circumstance.

not

invoke

equitable

case
a

for

applying

non-lawyer,

is

not

it.
an

Todd’s failure to bring suit timely

cannot be blamed on anyone else.
cannot

for

a

“One who fails to act diligently

principles

to

excuse

that

lack

of

diligence.” Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151
(1984).

Because there is no issue of material fact on this point,

Todd is barred by the 90-day statute of limitations as to all of
her claims except her would-be claims under the Privacy Act.
Privacy Act
Holder persuasively argues that, if any of Todd’s claims
survive the 90-day bar, Todd’s Privacy Act claims fail for a
variety of other reasons, including: (1) abandonment; (2) lack of
injury and therefore lack of standing; and (3) failure to file her
claim within the two-year statute of limitations provided by the
Privacy Act.
In her responsive brief (Doc. 11), Todd does not dispute, nor
even respond to, any of Holders’s arguments with respect to the
Privacy Act claims.

She provides nothing in opposition to her

Privacy Act claims, and thus, as a matter of law, abandons all such
claims. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir.
1998)(arguments not clearly raised in the briefs are considered
-14-

abandoned); Continental Technical Services, Inc. V. Rockwell Int’l
Corp., 927 F.2d 1198, 1199 (11th Cir. 1991)(“An argument not made
is waived....”).
Assuming arguendo that Todd did not abandon her Privacy Act
claims, they are foreclosed by the Act’s two-year statute of
limitations. 5 U.S.C. § 552a(g)(5).

Todd filed this action on

November 2, 2011, approximately three and a half years after the
alleged Privacy Act violations of April, 2008. In her supplemental
response (Doc. 22), Todd actually admits that her Privacy Act
claims are barred by the said two-year statute of limitations.

If

this is not abandonment, this court does not know what abandonment
consists of.
CONCLUSION
For

the

foregoing

reasons,

Todd’s

motions

to

amend

her

complaint will be denied, and Holder will be granted summary
judgment.

An appropriate separate order will be entered.

DONE this the 7th day of May, 2012.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

-15-