Hawkins v. McCarthy
Filing
37
MEMORANDUM OPINION AND ORDER GRANTING 26 MOTION to Dismiss and DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge Abdul K Kallon on 11/13/2019. (JLC)
FILED
2019 Nov-13 PM 05:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICKEY HAWKINS,
Plaintiff,
vs.
MARK T. ESPER, SECRETARY,
DEPARTMENT OF THE ARMY,
ET AL.,
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)
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)
)
)
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)
)
Civil Action Number
5:18-cv-00127-AKK
Defendants.
MEMORANDUM OPINION AND ORDER
Rickey Hawkins, proceeding pro se, brings this action against Mark T. Esper,
as Secretary for the Department of the Army, 1 HQAMC/LOGSA, a sub-agency of
the United States Army, and HQAMC/LOGSA supervisors Mark Witt, Danny
Bordeaux, and Fred Willis. See doc. 19. Hawkins alleges claims, pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, for employment
discrimination on the bases of race, color, gender, disability, and retaliation. Id. at 3.
The Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1), 12(b)(5), and 12(b)(6). See doc. 26. The motion is fully briefed, doc. 36,
and ripe for review. For the reasons stated below—in particular Hawkins’ failure to
1
Hawkins named Ryan D. McCarthy, former Acting Secretary of the Army, as the principal
defendant in this action. Doc. 19 at 1. Mark T. Esper was sworn in as Secretary of the Army on
November 17, 2017, doc. 26 at 1, and “is automatically substituted as a party” for former Acting
Secretary McCarthy pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
properly serve Secretary Esper, because Hawkins cannot sue a sub-agency of the
Army or his supervisors, and because Hawkins failed to exhaust his claims against
the Secretary—the motion is due to be granted.
I.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
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-defendant-unlawfullyharmed-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. (citing Bell Atl. Corp., 550 U.S. at 557).
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
2
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 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, 556 U.S. at 679.
Additionally, because Hawkins is proceeding pro se, the court must construe the
complaint more liberally than it would pleadings drafted by lawyers. Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.”).
II.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 2
Hawkins, an African-American man, doc. 19 at 24, had worked as a civilian
employee for the Army for thirty years and as a Senior Leader for eighteen years
when he approached his Equal Employment Opportunity Commission officer with
complaints of discrimination, harassment, and disparate treatment on the basis of
2
Hawkins’ allegations are presumed true for purposes of Fed. R. Civ. P. 12(b)(6). As such, the
facts are taken from the Second Amended Complaint, doc. 19. See Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir. 2000) (“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.”) (citations and quotation marks omitted). However, legal
conclusions unsupported by factual allegations are not entitled to that assumption of truth. See
Iqbal, 556 U.S. at 662.
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race. Id. at 20. Ultimately, Hawkins filed six complaints with his EEOC office
between January 2016 and October 2017. Doc. 7 at 13. Four of these complaints are
at issue in this case.
In his first complaint, EEO Complaint 289, Hawkins alleged claims against
his supervisors, Defendants Mark Witt and Danny Bordeaux, as well as a “Mr.
Dwyer,” all white men, for discrimination, harassment, disparate treatment, and
retaliation. Doc. 19 at 20. Allegedly, in response to this initial complaint, Hawkins’
supervisors began to “come after [him],” creating a “toxic environment” and
“forc[ing him] . . . to take another position.” Id. Based on this alleged conduct,
Hawkins sought mental health care for stress, and his psychologist advised him to
avoid his workplace. Id. In keeping with this advice, Hawkins used “[his] personal
leave . . . in order not to have a nervous breakdown at work.” Id.
This complaint was ultimately resolved through a Negotiated Settlement
Agreement through which Hawkins received a new supervisor. Docs. 26-1 at 4. But,
Hawkins alleged thereafter that one of his former supervisors breached the terms of
the Agreement by informing the new supervisor, Defendant Fred Willis, of
Hawkins’ past complaint. Doc. 19 at 20. After investigation, the Army issued a Final
Agency Decision finding no breach, see doc. 26-5, and the Office of Federal
Operations (OFO) affirmed, doc. 26-1 at 3-4.
The incidents at issue in Hawkins’ second complaint, EEO Complaint 2385,
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concerned the conduct of the new supervisor, Willis. Doc. 19 at 20. Allegedly, after
a conversation with Hawkins’ previous supervisor, Willis “began to treat [Hawkins]
differently.” Id. at 21. For example, when Hawkins inquired about an alternate work
schedule, Willis told him, “we don’t do that here.” Id. When Hawkins showed Willis
that the collective bargaining agreement allowed for such a schedule, Willis “became
very agitated,” and his treatment of Hawkins worsened. Id.
As to this second complaint, the EEO Office provided Hawkins a Notice of
Right to File a Formal Complaint of Discrimination, which “contains clear and
unambiguous filing instructions,” including a directive to file a complaint within
fifteen calendar days of receiving the Notice. Doc. 19 at 24. Despite the clear notice,
Hawkins waited twenty-nine days to file his formal complaint. Doc. 26-2 at 3. The
Army dismissed the complaint as untimely, doc. 26-6 at 1-2, and the OFO affirmed
and denied Hawkins’ request for reconsideration, doc. 26-2 at 4.
Hawkins’ third complaint, EEO Complaint 382, involved Willis’ alleged
increasingly poor treatment of him. See id. Allegedly, Willis held Hawkins to
different standards than other employees by requiring Hawkins to report his breaks,
demanding that Hawkins utilize his leave when he arrived a few minutes late to
work, and delaying Hawkins’ leave forms, causing him to miss a family funeral. Id.
Willis also gave Hawkins a three out of five on an annual performance review, and
when the union requested that Willis substantiate the rating by producing evidence
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of counseling and training he directed at Hawkins in response to this allegedly poor
performance (which he could not do), Willis “became more agitated.” Id. Hawkins
had never received such a low rating previously, and the rating has created serious
consequences for his career. Id.
Hawkins subsequently received his Notice of Right to file a formal EEO
complaint as to this third complaint. Doc. 26-3 at 3. Hawkins filed his formal
complaint eighteen days later, and EEO dismissed it as untimely after finding “ample
proof” that Hawkins “was in possession of the Notice of Right to File a Formal
Complaint of Discrimination.” Doc. 26-7 at 1-2. The OFO affirmed the dismissal.
See doc. 26-3 at 4.
Hawkins filed his final complaint, EEO Complaint 1953, against his coworker, Diana Willis. Doc. 19 at 16. Leading up to this complaint, Hawkins’ coworkers mocked the fact that they had to undergo sensitivity training in response to
Hawkins’ previous complaints. Id. Some of the co-workers criticized the training
and the underlying complaints, with one asking, “why do we have to do this
BULLSHIT, I have been here . . . for 10+ [years] and never had to do this bull shit,”
and another responding, “some punk went w[h]ining and now we have to do this.”
Id. For her part, Willis had not spoken to Hawkins for eight months, and yet one
morning, while Hawkins was speaking with a co-worker, id. at 18, Willis entered
the room, greeted Hawkins’ co-workers, and then demanded of Hawkins, “what is
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going on with this BS behind me[?],” id. at 16. Hawkins maintains that Willis’
statement was a reference to the co-workers discussing the sensitivity training. Id.
Hawkins immediately left the room and filed his complaint before taking leave to
avoid the “[t]oxic [e]nvironment and [h]arassment.” Id. After receiving his Notice
of Right to file a formal EEO complaint against Diana Willis, Hawkins waited until
sixteen days later to file his complaint. Doc. 26-4 at 3. The EEO office dismissed it
as untimely. Doc. 26-8 at 1-2.
Hawkins subsequently filed this lawsuit, seeking to litigate the claims that
form the basis of the four EEOC complaints.
III.
ANALYSIS
Defendants move to dismiss on three grounds: (1) lack of subject-matter
jurisdiction over Mark Witt, Danny Bordeaux, and Fred Willis pursuant to Fed. R.
Civ. P. 12(b)(1), (2) insufficient service of process on Secretary Mark Esper pursuant
to Fed. R. Civ. P. 12(b)(5); and (3) failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6). The court notes that Hawkins failed to
address these contentions in his response to the Defendants’ motion, and instead
simply realleged the claims in his complaint. See doc. 36. Consequently, Hawkins
has abandoned these claims, and they are “due to be dismissed on those grounds
alone.” See e.g., Collins v. Davol, Inc., 56 F. Supp. 3d 1222, 1228 (N.D. Ala. 2014)
(citing Fischer v. Fed. Bureau of Prisons, 349 F. App’x. 372, 375 n. 2 (11th Cir.
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2009)). Still, the court will discuss the Defendants’ various contentions in support
of their motion below.
A. Whether the Court Lacks Subject-Matter Jurisdiction over Mark
Witt, Danny Bordeaux, and Fred Willis
In his complaint, Hawkins makes claims under Title VII and “[o]ther federal
law [pertaining to] [h]arassment, [r]eprisal [and] [r]etaliation,” doc. 19 at 3, against
Secretary Mark Esper, HQAMC/LOGSA, and Mark Witt, Danny Bordeaux, and
Fred Willis, id. at 2. The Defendants argue that Hawkins can only pursue claims
under Title VII and that the only appropriate Defendant is Secretary Esper. See doc.
26 at 11-13. Indeed, “Title VII provides the exclusive, pre-emptive administrative
and judicial scheme for the redress of federal employment discrimination.” Canino
v. United States Equal Employment Opportunity Comm’n, 707 F.2d 468, 472 (11th
Cir. 1983) (citations and quotation marks omitted). And, the head of the agency
involved is the only appropriate defendant in a Title VII action under section 717.
42 U.S.C. § 2000e-16(c); Canino, 707 F.2d at 472. In that respect, as the Defendants
correctly note, the HQAMC/LOGSA is not a proper defendant because it is a subagency of the United States Army. See Lassiter v. Reno, 885 F. Supp. 869, 873 (E.D.
Va. 1995), aff’d, 86 F.3d 1151 (4th Cir. 1996) (allowing plaintiff to sue Attorney
General, who had supervisory authority over United States Marshal Service, but not
USMS or its director because a “plaintiff may not sue more than one department or
agency head in his or her official capacity”). Similarly, Hawkins may not pursue
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claims against Witt, Bordeaux, and Willis individually because the “[r]elief granted
under Title VII is against the employer, not individual employees whose actions
would constitute a violation of the act.” Busby v. City of Orlando, 931 F.2d 764, 772
(11th Cir. 1991); see also 42 U.S.C. § 2000e-2(a). Thus, to the extent Hawkins
asserts claims against HQAMC/LOGSA, Witt, Bordeaux, and Willis, these
defendants are due to be dismissed. The only proper defendant is Secretary Esper.
B. Whether the Court Lacks Personal Jurisdiction over Secretary
Mark Esper
Defendants argue also that the court lacks personal jurisdiction over Secretary
Esper and have moved to dismiss the claims against him under Rule 12(b)(5). A
motion to dismiss brought pursuant to Rule 12(b)(5) tests the sufficiency of service
of process. See Fed. R. Civ. P. 12(b)(5). When a defendant contests the sufficiency
of service, the plaintiff bears the burden of proving proper service. Aetna Bus. Credit,
Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981).
And, “[v]alid service of process is a prerequisite for a federal court to assert personal
jurisdiction over a defendant.” See Laster v. City of Albany, Georgia, Water, Gas &
Light Co., 517 F. App’x 777 (11th Cir. 2013).
To serve a United States officer sued in his official capacity, “a party must
serve the United States and also serve the officer or employee under Rule 4(e), (f),
or (g).” Fed. R. Civ. P. 4(i)(3). This entails:
(A)(i) deliver[ing] a copy of the summons and of the complaint to the
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United States attorney for the district where the action is brought—or
to an assistant United States attorney or clerical employee whom the
United States attorney designates in a writing filed with the court
clerk—or
(ii) send[ing] a copy of each by registered or certified mail to the civilprocess clerk at the United States attorney’s office;
(B) send[ing] a copy of each by registered or certified mail to the
Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of
the United States, send[ing] a copy of each by registered or certified
mail to the agency or officer.
Fed. R. Civ. P. 4(i)(1). Relevant here, after three courtesy communications from
Defendants notifying Hawkins that he had not properly served the United States and
directing him to Federal Rule of Civil Procedure 4(i)(1), see doc. 14 and doc. 20,
Hawkins attempted to serve Secretary Esper by sending a copy of the summons and
complaint to the Army’s EEOC Compliance Center located in Fort Belvoir, Virginia.
See docs. 21; 24 at 3, 6. The Defendants received the filing and returned the service
thereafter. Doc. 24. Unfortunately for Hawkins, service to the EEOC Compliance
Center is improper. Rather, pursuant to federal regulations, “[t]he Chief, Litigation
Division, shall accept service of process for Department of the Army or for the
Secretary of the Army in his official capacity.” 32 CFR § 516.14. Defendants state
the current Chief of the Army’s Litigation Division is Colonel Michael D. Mierau.
Doc. 26 at 14. By failing to serve Colonel Mierau, the Chief of the Litigation
Division, Hawkins has not properly served Secretary Esper with process in
accordance with applicable federal regulations and Rule 4.
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Rule 4 requires district courts to “extend the time for service for an appropriate
period” when “the plaintiff shows good cause for the failure.” Fed. R. Civ. P. 4(m).
But, “[g]ood cause exists only when some outside factor, such as reliance on faulty
advice, rather than inadvertence or negligence, prevented service.” Lepone-Dempsey
v. Carroll County Com’rs, 476 F.3d 1277, 1281 (11th Cir. 2007). Hawkins has not
shown good cause for his failure to serve Secretary Esper. In fact, despite courtesy
efforts by the Defendants to explain to him the deficiency in his service, see docs.
14 and 20, Hawkins has provided no evidence demonstrating proper service, see
generally docs. 19 and 36. Hawkins seems to contend instead that any defects in his
service were remedied by the receipt of his complaint and summons by Defendants,
attaching a copy of the docket and indicating receipt of his first attempt at service,
doc. 19 at 9-11. But, “[a] defendant’s actual notice is not sufficient to cure
defectively executed service.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.
2007). And, despite his pro se status, Hawkins must “nevertheless . . . conform to
procedural rules.” Id. In other words, in light of his failure to properly serve
Secretary Esper, the court does not have personal jurisdiction over the Secretary.
Moreover, although district courts have the discretion to extend the period for
service of process even in the absence of good cause, see Horenkamp v. Van Winkle
& Co., 402 F.3d 1129, 1133 (11th Cir. 2005), giving Hawkins another opportunity
to properly serve Secretary Esper would serve no utility because, as discussed below,
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the court lacks subject-matter jurisdiction over his claims.
C. Whether the Government Has Waived Sovereign Immunity as to
EEO Complaint 289
Hawkins alleges his claims against the United States Army, a federal agency,
and must therefore demonstrate that the United States has waived its sovereign
immunity in order for this court to exercise subject-matter jurisdiction. United States
v. Mitchell, 445 U.S. 535, 538 (1980). Waiver of sovereign immunity “cannot be
implied but must be unequivocally expressed.” Id. And, “the Government’s consent
to be sued must be construed strictly in favor of the sovereign.” United States v.
Nordic Village, Inc., 503 U.S. 30, 34 (1992).
Hawkins’ EEO Complaint 289 resulted in a Negotiated Settlement
Agreement. Doc. 26-1 at 4. When an employee gives knowing and voluntary consent
to a Title VII settlement agreement, his Title VII causes of action are released.
Myricks v. FRB, 480 F.3d 1036, 1040 (11th Cir. 2007). Because Hawkins does not
dispute that he knowingly and voluntarily resolved his claims for EEO Complaint
289 by settlement agreement, see generally doc. 19, the court finds that he released
his Title VII claims under that complaint. Therefore, Hawkins’ sole claim regarding
this complaint is a purported contract rescission claim, doc. 19 at 20, which is not
covered by the sovereign immunity waiver in Title VII. See Thompson v. McHugh,
388 F. App’x. 870, 872-73 (11th Cir. 2010) (holding a district court lacked subjectmatter jurisdiction to hear an employee’s contract rescission claim regarding her
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Title VII settlement). Consequently, because the United States has not waived
sovereign immunity as to this contract rescission claim, this court lacks subjectmatter jurisdiction over this claim.
D. Whether Hawkins has Failed to Exhaust EEO Complaints 2385,
382, and 1953
Defendants argue that Hawkins failed to timely exhaust his administrative
remedies as to his remaining EEO Complaints—2385, 382, and 1953. Doc. 26 at 2025. Title VII exhaustion requirements, including timely filing, are “a condition to
the waiver of sovereign immunity” and consequently are “strictly construed.” Irwin
v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990). Relevant here, Hawkins filed
EEO Complaint 2385 fourteen days late, doc. 26-2 at 3, Complaint 382 three days
late, doc. 26-3 at 3, and Complaint 1953 one day late, doc. 26-4 at 3. Before and
after missing these three deadlines, Hawkins successfully navigated the complaint
process in EEO Complaint 289, as well as in two complaints not at issue in this case.
See doc. 7 at 13. Furthermore, he received in each of the complaints a notice, which
provided detailed instructions on how to timely file. Docs. 19 at 24, 26-3 at 3, and
26-4 at 3. By missing these deadlines, Hawkins failed to properly exhaust his
administrative remedies under Title VII. Moreover, Hawkins alleges no justification
for this failure to avail himself of the equitable tolling doctrine. 3 Therefore, because
3
Equitable tolling doctrine allows courts to pause certain procedural deadlines when justice so
demands. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (holding filing
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timely filing is a condition to the United States’ waiver of sovereign immunity under
Title VII, this court lacks subject-matter jurisdiction to hear claims related to
Hawkins’ EEO Complaints 2385, 382, and 1953.
IV.
CONCLUSION AND ORDER
For the reasons stated above, the Defendants’ Motion to Dismiss, doc. 26, is
GRANTED. Hawkins’ Second Amended Complaint, doc. 19., is DISMISSED
WITHOUT PREJUDICE. The clerk is DIRECTED to close the file.
DONE the 13th day of November, 2019.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
deadlines for charges of discrimination with the EEOC are subject to waiver, estoppel, and
equitable tolling); Burnett v. New York Central R. Co., 380 U.S. 424 (1965) (allowing equitable
tolling where plaintiff filed a defective pleading but otherwise actively pursued his claim).
However, a plaintiff’s failure to exercise due diligence is not grounds equitable tolling. See Irwin,
498 U.S. at 95-96 (holding the plaintiff’s lawyer’s absence from his office did not warrant
equitable tolling as it was “at best a garden variety claim of excusable neglect”); see, e.g., Jackson
v. Astrue, 506 F.3d 1349, 1356 (11th Cir. 2007) (holding benefits claimant’s limited linguistic and
legal experience did not rise to the “extraordinary circumstances warranting equitable tolling”
where the Social Security Administration’s Appeals Council gave clear filing instructions).
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