Melton v. Holder

Filing 13

MEMORANDUM OPINION AND ORDER: As further set out in MO and Order, 5 , Defendant's Motion to Dismiss, is GRANTED. Signed by Judge Abdul K Kallon on 01/31/13. (CVA)

FILED
2013 Jan-31 PM 03:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DURWARD J MELTON,
Plaintiff,
vs.
ERIC H. HOLDER, JR., in his
official capacity as Attorney
General of the United States
Department of Justice,
Defendant.

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Civil Action Number
2:12-cv-2099-AKK

MEMORANDUM OPINION AND ORDER
Durward J. Melton filed this lawsuit seeking damages, a declaratory
judgment, and injunctive relief against the United States Department of Justice
(“DOJ”) alleging that his former employer the Federal Bureau of Investigation
(“FBI”) retaliated against him in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Doc. 1. DOJ filed a motion to
dismiss for failure to state a claim upon which relief can be granted. Doc. 5. The
motion is fully briefed and ripe for adjudication. Docs. 10 and 11. For the reasons
stated below, the court GRANTS the motion.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
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short and plain statement of the claim showing that the pleader is entitled to
relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” are
insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks
omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id.
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To 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.” Iqbal, 556 U.S. at 678
(citations and internal quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted). The complaint must establish “more
than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell
Atl. Corp., 550 U.S. at 555 (“Factual allegations must be enough to raise a right to

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relief above the speculative level.”). Ultimately, this inquiry is a “context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 129 S. Ct. at 1950.
II. PROCEDURAL AND FACTUAL BACKGROUND1
A.

Melton’s employment with the FBI
Melton worked for the FBI for twenty years and received “excellent ratings

on his performance evaluations.” Doc. 1 at ¶¶ 9, 10. In January 2008, Melton
consulted Lorenza Moore, former Equal Employment Opportunity Coordinator,
“regarding EEO counseling.”2 Id. at ¶ 11. Moore advised Melton to “seek
counseling anonymously” to avoid the troublemaker label. Id. at ¶¶ 11, 16.
Allegedly, Moore failed to provide Melton EEO information advising him of his
rights. Id. at ¶ 16. Moreover, when Melton occasionally asked Moore about “his
case,” Moore responded simply, “wait and see.” Id.
Melton received several personnel actions after he complained to Moore.
Also, two weeks after Melton’s initial contact with Moore, the FBI transferred

1

“When considering a motion to dismiss, all facts set forth in the plaintiff’s complaint
‘are to be accepted as true and the court limits its consideration to the pleadings and exhibits
attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). However, legal
conclusions unsupported by factual allegations are not entitled to that assumption of truth. See
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009).
2

The Complaint fails to explain why Melton sought EEO counseling.
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Melton to White Collar Crime. Id. at ¶ 17. Although Melton met with Moore on
several occasions after the transfer, Moore continued to advise Melton to “wait
and see” or “hold off.” Id. at ¶ 19. Moreover, the alleged retaliation continued
after the transfer. Specifically, Tom Class, FBI Supervisory Special Agent, placed
Melton on 60-day file reviews rather than the standard 90-day practice. Id.
Thereafter, in June 2008, the FBI informed Melton that he was “the subject of an
Office of Professional Responsibility [“OPR”] investigation.” Id. ¶ 20. Several
months later, the FBI transferred Melton to the Field Intelligence Group. Id. ¶ 21.
Then in November 2008, the FBI interviewed Melton regarding the OPR
investigation. Id. ¶ 22. Melton consulted with Moore after each of these
occurrences and Moore advised Melton that “the OPR [investigation] would be
part of the ongoing harassment” investigation and to “wait and see.” Id. ¶¶ 20-22.
B.

Melton’s 2009 EEO Complaint and corresponding lawsuit

On February 24, 2009, Melton received an OPR sanctions letter
recommending a sixty-day suspension and a “mandatory inter-divisional transfer.”
Id. at ¶ 23. Moore advised Melton that he had forty-five days to file a complaint
with Special Agent Rebecca Ellingwood regarding the letter. Id. Consequently,
on April 7, 2009, Melton initiated contact with a DOJ EEO officer and
subsequently filed an EEO Complaint on June 25, 2009, alleging that the FBI

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discriminated against him based on his sex and age by labeling him a
troublemaker, subjecting him to an OPR investigation in June 2008, and issuing
the OPR letter proposing a sixty-day suspension and mandatory transfer in
February 2009. Case No: 4:10-cv-3205-CLS, doc. 6-1 at 5, 6, 16. Melton
resigned from the FBI the next day. Doc. 1 at 1.
On November 23, 2009, the FBI dismissed Melton’s EEO Complaint
regarding the troublemaker allegation and the June 2008 OPR investigation as
untimely since Melton’s contact with the EEO counselor on April 7, 2009
occurred well after the 45-day deadline. Case No: 4:10-cv-3205-CLS, doc. 6-2 at
1-2. The FBI also found that the OPR letter proposed a suspension and transfer
and, therefore, was insufficient to show that Melton had suffered an adverse action
with respect to his employment and that Melton’s resignation foreclosed any
expectation that an adverse action would occur. Id. at 3. The Equal Employment
Opportunity Commission Office of Federal Operations affirmed the FBI’s
decision. Id. at 6-3 at 2.
On November 22, 2010, Melton filed a Complaint in this court (the “first
lawsuit”) against the DOJ alleging retaliation and age and sex discrimination in
violation of Title VII based on the allegations outlined in his EEO Complaint.
Case No: 4:10-cv-3205-CLS, doc. 1 at ¶¶ 29, 32, 33-47, 54. Melton also

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challenged his voluntary separation from the FBI by seeking back pay and front
pay. Id. at 11 ¶ 55 and 12 ¶ 3. After the DOJ filed a motion to dismiss for lack of
subject matter jurisdiction, id. at doc. 6, Magistrate Judge Robert Armstrong
entered a report and recommendation to dismiss the lawsuit, finding that Melton’s
November 2008 OPR interview was the most recent alleged discriminatory act and
that Melton initially contacted an EEO counselor in April 2009, well past the 45day deadline.3 Id. at doc. 10. Melton failed to file an objection within the
fourteen-day deadline. Judge Lynwood Smith adopted the report and dismissed
the action. Id. at doc. 11.
C.

Melton’s 2011 EEO Complaint and corresponding lawsuit
Two years later, on September 21, 2011, Melton initiated contact with the

DOJ EEO office and filed an EEO Complaint on November 22, 2011, challenging
his June 2009 resignation from the FBI. Doc. 1-1 at 2. Melton alleged that he
learned on August 23, 2011 that Special Agent in Charge Carmen Adams, Moore,
Ellingwood, and others retaliated against him and “caused a hostile work
environment from a previous EEO protected activity beginning in January 2008.”
Id. at 2. Specifically, echoing the claims he raised in his EEO Complaint in 2009,
Melton’s “new” EEO Complaint alleges that (1) he was reassigned to another

3

The court noted that even if it considered Melton’s January 9, 2008 counseling with
Moore, Melton’s claims are still untimely. Case No: 4:10-cv-3205-CLS, doc. 10 at 3 n.2.
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squad, required to undergo 60-day file reviews instead of the customary 90-day
reviews, and was the subject of an OPR investigation that ultimately resulted in a
proposed transfer and sixty-day suspension without pay, (2) Moore encouraged
him to seek counseling anonymously to avoid the “troublemaker” label, failed to
advise him of his rights, and divulged protected EEO information, and (3) for the
first time, that he was constructively discharged. Id. at 2-3. To no surprise, the
FBI dismissed Melton’s EEO Complaint because Melton had already raised these
allegations in his 2010 lawsuit. Doc. 1-2 at 2. As it relates to Melton’s sole “new”
allegation, i.e. constructive discharge, the FBI found that Melton should have
raised this claim in his June 25, 2009 EEO Complaint and that the claim is
untimely. Id. at 3.
On June 7, 2012, Melton filed this lawsuit alleging that the FBI retaliated
against him in violation of Title VII. Doc. 1 at ¶¶ 34-36. Allegedly, the “most
recent” retaliatory act occurred on June 26, 2009, when Melton resigned his
employment “as a result of repetitive discrimination and retaliation by the FBI.”
Id. at ¶ 1. Melton maintains that he discovered the FBI’s alleged “most recent”
retaliation on August 23, 2011 after reviewing lawsuits filed by Paul Daymond
and Jessica Wallace. Id. at ¶ 33; see also ¶ 28, 29.

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III. ANALYSIS
The court will only address Melton’s “most recent” allegation since the
other issues he raised are identical to those that made up his 2010 lawsuit. Melton
had an opportunity to challenge the magistrate judge’s report and recommendation
that the court lacked subject matter jurisdiction and failed to do so. Likewise, he
failed to appeal Judge Smith’s dismissal of his case. The time to do so has long
passed and his attempt to do so now by refiling these claims fails for a host of
reasons. See, e.g., I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1549
(11th Cir. 1986) (issue preclusion “forecloses relitigation of an issue of fact or
law” if: (1) the issue at stake is identical to the one involved in the prior litigation;
(2) the issue was actually litigated in the prior suit; (3) the determination of the
issue in the prior litigation was “a critical and necessary part of the judgment in
that action;” and (4) the party against whom the earlier decision is asserted had a
full and fair opportunity to litigate the issue in the earlier proceeding) (citations
omitted); N. Ga. Elec. Membership Corp. v. City of Calhoun, Ga., 989 F.2d 429,
433 (11th Cir. 1993), citing Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)
(citations omitted) (“Although the dismissal of a complaint for lack of jurisdiction
does not adjudicate the merits so as to make the case res judicata on the substance
of the asserted claim, it does adjudicate the court’s jurisdiction, and a second
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complaint cannot command a second consideration of the same jurisdictional
claims.”).
As to Melton’s “most recent” claim, since Melton sought relief for the
resignation in his first lawsuit by asking for lost wages and front pay, the court is
confounded by Melton’s contention that he only learned in August 2011 that his
own decision to resign in June 2009 was not voluntary. Case No: 4:10-cv-3205CLS, doc. 1 at 11 ¶ 55 and 12 ¶ 3. Although Melton failed to specifically allege
that the FBI constructively discharged him, lost wages and front pay are remedies
a party who resigned can recover only if he maintains that he was forced to resign.
See Gowski v. Peake, 682 F.3d 1299, 1310 n.10 (11th Cir. 2012) (finding that the
district court properly vacated the lost wages award based on the undisputed fact
that no constructive discharge occurred). Therefore, Melton’s first lawsuit belies
his contention that he only learned in 2011 that the FBI forced him to resign in
2009. Put differently, Melton’s purported “most recent” claim faces the same
procedural hurdles as the other claims in his first lawsuit.
Even if the court suspends reality and finds that this lawsuit raises new and
different claims from the first lawsuit, Melton’s claims still fail because of
Melton’s failure to timely exhaust his administrative remedies. Prior to filing a
Title VII lawsuit, a federal employee must first seek reconciliation from the
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agency where the discrimination occurred. Brown v. Gen. Servs. Admin., 425 U.S.
830, 832 (1976). Equal Employment Opportunity Commission regulations require
that federal employees “must initiate contact with a Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within 45 days of the effective date of the action,” or the claim is barred.
29 C.F.R. § 1614.105(a)(1); Ramirez v. Sec., U.S. Dept. of Transp., 686 F.3d 1239,
1243 (11th Cir. 2012); Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008).
Unfortunately for Melton, based on his Complaint and response in
opposition to the motion to dismiss, it is undisputed that he failed to timely
exhaust his administrative remedies. As adverse employment actions, Melton
cites the following:
Plaintiff met the adverse action prong when SAC Adams launched an
OPR Investigation and transferred Plaintiff two weeks after he sought
EEO counseling. Plaintiff contends the involuntary transfer of an
employee, particularly one who had just filed an EEO complaint,
would deter a reasonable person from making or supporting a charge
of discrimination.
Doc. 10 at 4-5. Based on Melton’s Complaint, the transfer occurred around
January 2008 and the OPR investigation occurred in June 2008. Doc. 1 at ¶¶ 17,
20. Therefore, to have a timely claim, Melton should have pursued his
administrative remedies within 45 days of these alleged actions. Moreover, even

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if the court ignores the actual adverse actions Melton cites in his brief and focuses
instead only on Melton’s “most recent” allegation of discrimination, i.e. that the
FBI constructively discharged him on June 26, 2009, Melton’s claim is still
untimely. To preserve this claim, Melton should have consulted an EEO
counselor by August 10, 2009. Instead, according to the information Melton
submitted with this lawsuit, Melton initiated contact with the EEO office on
September 21, 2011, over two years after the August 2009 deadline. Doc. 1-1 at 1.
Moreover, since the premise of a constructive discharge claim is that the working
conditions are “so intolerable” that a reasonable person in Melton’s position had
no choice except to resign, Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974,
977 (11th Cir. 2003) (citation omitted), Melton cannot legitimately contend that he
only became aware two years later of the alleged intolerable conditions that forced
him to resign in 2009. It would require the suspension of disbelief to credit such a
contention in a constructive discharge claim. In fact, such an assertion defies logic
since Melton cannot claim constructive discharge unless he knew about the
purported intolerable working conditions when he resigned in 2009.
Melton also failed to contend that equitable tolling of the 45-day period is
warranted and this court finds no reason to apply that extraordinary remedy in
light of Melton’s admission that Moore advised him that he had 45 days to file an
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EEO Complaint after Melton received the OPR letter.4 Doc. 1 at ¶ 23. Indeed,
Melton previously filed an EEO Complaint in a timely manner, 4:10-cv-3205CLS, doc. 6-1 at 15, 6-2 at 3,5 and therefore cannot contend he has no familiarity
with the deadline requirement. Moreover, Melton failed to establish that his
untimeliness was due to the “action[s] of the agency.” Wade, 796 F.2d at 1377.
Consequently, Melton has failed to establish that this court has subject matter
jurisdiction over his retaliation claim.
IV. CONCLUSION
In light of Melton’s failure to state a claim upon which relief can be granted,
Defendant’s motion to dismiss is GRANTED.
DONE this 31st day of January, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

4

The 45-day time limit can be extended if the individual shows that he “was not notified
of the time limits and was not otherwise aware of them, that [ ] he did not know and reasonably
should not have [ ] known that the discriminatory matter or personnel action occurred.” 29
C.F.R. § 1614.105(a)(2). Furthermore, if an employee is “hampered by the action of the agency,”
he should not be penalized for failing to adhere to the exhaustion requirements. Wade v. Sec. of
Army, 796 F.2d 1369, 1377 (11th Cir. 1986).
5

The EEO Complaint was timely as to Melton’s claims regarding the OPR proposed
sanctions letter although this claim was dismissed on other grounds. 4:10-cv-3205-CLS, doc. 6-2
at 3.
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