Hawthorne v. U.S. Equal Employment Opportunity Commission et al

Filing 96

MEMORANDUM OPINION AND ORDER - For the reasons discussed above, the Court denies the Army's motion to dismiss and supplemental motion to dismiss, (Docs. 83 , 89 ), as to Count 5. In all other respects, the Court grants those motions and dismis ses the remaining counts (Counts 14, 8) with prejudice. The Court grants the union defendants motion to dismiss, (Doc. 79 ), in its entirety. The following claims are dismissed with prejudice: all claims based on the violation of 18 U.S.C. §&# 167; 1001 and 1505; all claims against the individual defendants; and all claims in Count 6. The Court dismisses without prejudice the remaining claims against Local 1858, District 5, and the national union so that Mr. Hawthorne may pursue those claims in a proper forum if he wishes. (Counts 7, 9, 1011). Signed by Judge Madeline Hughes Haikala on 5/29/2020. (KEK)

FILED
2020 May-29 PM 12:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

DAVID HAWTHORNE,
Plaintiff,
v.
RYAN D. MCCARTHY, Secretary
of the Army, et al.,
Defendants.

}
}
}
}
}
}
}
}
}
}

Case No.: 5:18-cv-00689-MHH

MEMORANDUM OPINION AND ORDER 1
The United States Army has asked the Court to dismiss this federal-sector
civilian employment discrimination action. (Docs. 83, 89).2 So have the union
defendants:

David Cox, David Mollet, and Abner Merriweather.

(Doc. 79).

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the defendants
challenge this Court’s subject matter jurisdiction over David Hawthorne’s claims
against them. And if the Court has jurisdiction, then the defendants ask the Court to
1

The Court is issuing this opinion during a declared national emergency concerning COVID- 19.
To enable parties to pursue their rights during this emergency, the Court is continuing its work.
For information about the timing of appeals, please review the information provided in the
conclusion of this opinion. The Court is including this procedural information in each opinion that
it issues during the national emergency.
2

The Army is sued by and through the Secretary of the Army. Mr. Hawthorne named Mark Esper
as the Secretary of the Army in his amended complaint. (Doc. 73, p. 2). Ryan D. McCarthy is the
current Secretary of the Army, so the Court has substituted Mr. McCarthy for Mr. Esper. See Fed.
R. Civ. P. 25(d) (When a public officer ceases holding office, that “officer’s successor is
automatically substituted as a party.”).

dismiss Mr. Hawthorne’s claims pursuant to Rule 12(b)(6) for failure to state a claim
upon which relief may be granted. For the reasons discussed in this opinion, the
Court finds that it has jurisdiction over this matter. Pursuant to Rule 12(b)(6), the
Court will grant the union defendants’ motion to dismiss and will grant in part and
deny in part the Army’s motion to dismiss. 3
I.

STANDARD OF REVIEW
Rule 12(b)(1) enables a defendant to move to dismiss a complaint for “lack of

subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). In the absence of subject
matter jurisdiction, a district court may not hear a case. Scarfo v. Ginsberg, 175 F.3d
957, 961 (11th Cir. 1999). Consequently, when a defendant pursues “a Rule 12(b)(1)
motion [] in conjunction with other Rule 12 motions, the court should consider the
Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of
Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam)). 4

3

Mr. Mollett also seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(4) and (5), for insufficient
process and insufficient service of process, respectively. Because Mr. Hawthorne has abandoned
his claims against the individual defendants (see Doc. 80, pp. 14–15, ¶40), there is no need to
discuss these rules.
The Hitt decision is binding authority in the Eleventh Circuit Court of Appeals. Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (adopting as binding precedent in the Eleventh
Circuit Court of Appeals decisions that the Fifth Circuit Court of Appeals rendered before October
1, 1981).

4

2

Attacks on subject-matter jurisdiction under Rule 12(b)(1) may be either
facial or factual. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,
1279 (11th Cir. 2009).

“Facial attacks to subject matter jurisdiction require the

court merely to look and see if the plaintiff's complaint has sufficiently alleged a
basis of subject matter jurisdiction, and the allegations in his complaint are taken as
true for the purposes of the motion.” Houston v. Marod Supermarkets, Inc., 733
F.3d 1323, 1335–36 (11th Cir. 2013) (citing Carmichael, 572 F.3d at 1279)); see
also, McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251
(11th Cir. 2007). “Factual attacks, on the other hand, challenge the existence of
subject matter jurisdiction in fact.”

McElmurray, 501 F.3d at 1251 (internal

quotations and citations omitted). “[W]here a defendant raises a factual attack on
subject matter jurisdiction, the district court may consider extrinsic evidence such as
deposition testimony and affidavits.” Carmichael, 572 F.3d at 1279. “In so doing,
a district court may weigh the facts, and the court is “not constrained to view them
in the light most favorable” to the plaintiff.” Houston, 733 F.3d at 1336 (quoting
Carmichael, 572 F.3d at 1279)).
Rule 12(b)(6) enables a defendant to move to dismiss a complaint for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A Rule
12(b)(6) motion to dismiss tests the sufficiency of a complaint against the “liberal
pleading standards set forth by Rule 8(a)(2).” Erickson v. Pardus, 551 U.S. 89, 94
3

(2007). Pursuant to Rule 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the
requirement of Fed. R. Civ. P. 8(a)(2), a complaint need not contain ‘detailed factual
allegations,’ but rather ‘only enough facts to state a claim to relief that is plausible
on its face.’” Maledy v. City of Enterprise, 2012 WL 1028176, *1 (M.D. Ala. March
2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).
“Specific facts are not necessary; the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Erickson, 551
U.S. at 93 (quoting Twombly, 550 U.S. at 555).
“Thus, the pleading standard set forth in Federal Rule of Civil Procedure 8
evaluates the plausibility of the facts alleged, and the notice stemming from a
complaint’s allegations.” Keene v. Prine, 477 Fed. Appx. 575, 583 (11th Cir. 2012).
“Where those two requirements are met . . . the form of the complaint is not
significant if it alleges facts upon which relief can be granted, even if it fails to
categorize correctly the legal theory giving rise to the claim.” Id.
This is particularly true with respect to pro se complaints. Courts must
liberally construe pro se documents. Erickson, 551 U.S. at 94. “‘[A] pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94 (quoting Estelle v.
4

Gamble, 429 U.S. 97, 106 (1976)); see also Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”). Cf.
Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). Still, a
district court “may not serve as de facto counsel for a party, or … rewrite an
otherwise deficient pleading in order to sustain an action.” Ausar-El ex. rel. Small,
Jr. v. BAC (Bank of America) Home Loans Servicing LP, 448 Fed. Appx. 1, 2 (11th
Cir. 2011) (internal quotations and citations omitted).
When evaluating a Rule 12(b)(6) motion to dismiss, a district court accepts as
true the factual allegations in the complaint – or in this case, the amended complaint
– and construes the factual allegations in the light most favorable to the plaintiff,
McCullough v. Finley, 907 F.3d 1324, 1330 (11th Cir. 2018), but “conclusory
allegations . . . are not entitled to an assumption of truth—legal conclusions must be
supported by factual allegations,” Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir.
2010). Accordingly, in this opinion, the Court presents the factual allegations in the
amended complaint in the light most favorable to Mr. Hawthorne and draws all
inferences from the factual allegations in his favor. As the case proceeds, the
evidence may, or may not, differ from the factual allegations in Mr. Hawthorne’s
amended complaint.

5

II.

ALLEGATIONS IN THE AMENDED COMPLAINT
Mr. Hawthorne is an engineer and a civilian federal employee at the United

States Army Sustainment Command located at Redstone Arsenal near Huntsville,
Alabama. (Doc. 73, p. 2, ¶ 1). Mr. Hawthorne is a member of both the American
Federation of Government Employees, a national union that represents government
workers, and the local chapter of that union, Local 1858 which is part of District 5
of the national union. (Doc. 73, p. 3, ¶ 7). (Doc. 73, p. 7, ¶ 23).
A. Alleged Sexual Harassment by Abner Merriweather
Mr. Hawthorne contends that Abner Merriweather, the president of Local
1858, and an employee of the Army’s Aviation and Missile Research Development
and Engineering Center, sexually harassed him and subjected him to a hostile work
environment. (Doc. 73, p. 2, ¶ 1). Mr. Hawthorne alleges that Mr. Merriweathwr
began harassing him on March 20, 2017. (Doc. 73, p. 3, ¶ 2). On that date, Mr.
Merriweather asked Mr. Hawthorne to accompany him to a casino in Mississippi.
(Doc. 73, p. 3, ¶ 2). Mr. Hawthorne “told [Mr. Merriweather] no, and went on to
say that [Mr. Merriweather] should take his lady to that event, and not to ask [Mr.
Hawthorne] about such a thing.” (Doc. 73, p. 3, ¶ 2).
On May 8, 2017, Mother’s Day, Mr. Merriweather sent a group text to Mr.
Hawthorne, and others, that said “Happy Mother’s Day.” (Doc. 16-8, p. 7; Doc. 73,

6

p. 3, ¶ 3). 5 Mr. Hawthorne responded by text: “Abner I know you play a lot, but I
don’t like the gay jokes in any form or fashion. There is nothing funny, playful or
amusing about what you just said . . . Leave me out of the gay jokes . . . .” (Doc. 168, p. 7; Doc. 73, p. 3, ¶ 3). Mr. Merriweather apologized and wrote that “he would
never do anything like that again.” (Doc. 73, p. 3, ¶ 3).6
During a May 20, 2017 phone conversation with Mr. Hawthorne, Mr.
Merriweather asked Mr. Hawthorne to come to Mr. Merriweather’s home and cook
for Mr. Merriweather. (Doc. 73, p. 3, ¶ 4). Mr. Hawthorne alleges that he
explicitly told [Mr. Merriweather] that he needed to ask his lady to do
that and not to be asking me about such things. I told him that it sounded
like a gay request, and that a man should ask his lady or a lady should
ask her man to do those things. I went on to tell him that he should not
be asking me and to stop.
(Doc. 73, p. 3, ¶ 4).

5

Page 7 of Doc. 16-8 is a copy of Mr. Merriweather’s text message, and Mr. Hawthorne’s
response, that is referenced in, but not attached to, the amended complaint. It is part of an exhibit
filed by Mr. Hawthorne on June 15, 2018. This Court may consider documents that Mr. Hawthorne
referenced in his amended complaint without converting the defendants’ motions to dismiss to
motions for summary judgment, even though the documents are not physically attached to the
amended complaint, if the documents are central to the complaint and no party questions their
authenticity. Madura v. Bank of Am., N.A., 767 Fed. Appx. 868, 870 (11th Cir. 2019) (citing Day
v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)). “A document is central to a complaint when it
is a “’necessary part of [the plaintiff’s] effort to make out a claim.’” Madura, 767 Fed. Appx. at
870 (quoting Day, 400 F.3d at 1276). The text message is a part of Mr. Hawthorne’s effort to
make out a claim of harassment, and to date, no party has objected to it.
In his amended complaint, Mr. Hawthorne refers to many such documents. To the extent that
those documents appear in the record of this case without objection, the Court has considered them
for purposes of this opinion.
6

The Court has not located Mr. Merriweather’s reply email in the record.
7

At a bar on May 22, 2017, Mr. Merriweather approached Mr. Hawthorne and
began telling another nearby patron that Mr. Merriweather had asked Mr. Hawthorne
“to go on a cruise with him.” (Doc. 73, p. 3, ¶ 5). Mr. Hawthorne immediately
walked away from Mr. Merriweather and the patron. (Doc. 73, p. 3, ¶ 5). The next
day, Mr. Hawthorne sent Mr. Merriweather a text saying that Merriweather knew
that “he did not ask me and/or my lady to go on a cruise with him . . . and not to lie
on me or even ask me such a thing.” (Doc. 73, p. 3, ¶ 5). That same day, Mr.
Merriweather responded by texting an apology “for lying,” and “said he would not
do that again.” (Doc. 73, p. 3, ¶5). Later, by text, Mr. Merriweather called Mr.
Hawthorne “too sensitive.” (Doc. 73, p. 3, ¶ 5).
On May 26, 2017, at the Local 1858 office, Mr. Merriweather asked Mr.
Hawthorne to accompany Mr. Merriweather on a cruise for just the two of them.
(Doc. 73, p. 3, ¶6). Mr. Hawthorne declined and told Mr. Merriweather “not to ask
me something like that because . . . that is something a person ask[s] of their
companion.” (Doc. 73, p. 3, ¶ 6).
Mr. Hawthorne was recruiting new union members at a local bar on May 30,
2017, when Mr. Merriweather approached and began calling Mr. Hawthorne “[h]is
Boo Boo,” and telling Mr. Hawthorne “you know you are my Boo Boo.” (Doc. 73,
p. 3–4, ¶ 7). This continued despite Mr. Hawthorne telling Mr. Merriweather to stop
“15 to 20 times.” (Doc. 73, p. 3, ¶ 7). Mr. Hawthorne then moved to another seat,
8

but Mr. Merriweather followed and continued to call Mr. Hawthorne “[h]is Boo
Boo,” sometimes whispering it. (Doc. 73, p. 4, ¶ 7). This continued even after two
bar patrons intervened and asked Mr. Merriweather to stop.

Mr. Hawthorne

eventually left. (Doc. 73, p. 4, ¶ 7).
The next morning, May 31, 2017, at 3:00 a.m., Mr. Merriweather sent a text
to Mr. Hawthorne about the previous day’s incident. (Doc. 73, p. 4, ¶ 8). At 3:30
a.m. that same morning, Mr. Hawthorne responded and asked Mr. Merriweather not
to text him again. (Doc. 73, p. 4, ¶ 8; Doc. 16-8, p. 5). The text continues, in
pertinent part:
I told you to [s]top calling me that. It was offensive it was sexual [i]n
nature, it was in fact to me sexual harassment. Only the day before, or
two days before, with Judy on the phone you ask[ed] me to cook for
you, [I find that] homosexual in nature too. And I was offended by it as
was illustrative [sic] in my reply to you with Judy in the phone.
(Doc. 16-8, p. 5; see also Doc. 73, p. 4, ¶ 8). Mr. Merriweather replied by text 15
minutes later saying “[e]verything [you] said above is correct, it was the manner [in
which you] said it to me in a bully[ing] and dictating way . . . please don’t text me
again.” (Doc. 16-8, p. 4; see also Doc. 73, p. 4, ¶ 8). In another text, Mr.
Merriweather accused Mr. Hawthorne of “coming over to [and] physically
threatening [Mr. Merriweather].”

(Doc. 16-8, p. 4).

Mr. Merriweather also

apologized for calling Mr. Hawthorne “his Boo Boo.” (Doc. 16-8, p. 4).

9

B. Mr. Hawthorne’s Sexual Harassment and Reprisal EEO
Complaint Concerning Mr. Merriweather’s Alleged Conduct
On May 31, 2017, Mr. Hawthorne submitted to the Army’s Office of Equal
Employment Opportunity a sexual harassment complaint against Mr. Merriweather.
(Doc. 73, p. 5; Doc. 73-1, pp. 1–2). Mr. Hawthorne alleges that he brought the May
31, 2017 EEO complaint “pursuant to 42 U.S.C. 2000e-2(a) et seq.” (Doc. 73, p. 20,
¶ 81). The factual basis for this EEO complaint was Mr. Merriweather’s conduct the
previous day, and Mr. Merriweather’s request that Mr. Hawthorne cook for Mr.
Merriweather. (Doc. 73, pp. 5, 16; Doc. 73-1, p. 2).
Because he was the local union president, the EEO office listed Mr.
Merriweather as his own supervisor on forms related to Mr. Hawthorne’s EEO
complaint. (Doc. 73, p. 16, ¶ 66). Mr. Hawthorne argued that Mr. Merriweather
was acting in his capacity as an employee of the Army, as well as the local union
president, when the events occurred. (Doc. 73, pp. 16-17, ¶¶ 66–68). On June 5,
2017, Mr. Hawthorne emailed the Army’s EEO office and complained that Mr.
Merriweather’s Army supervisor should be notified. (Doc. 73, pp. 16-17, ¶¶ 66–67).
The EEO office did not do so. (Doc. 73, p. 16, ¶ 66).
In correspondence dated June 5, 2017, Frank G. Alfano, counsel for Mr.
Merriweather, accused Mr. Hawthorne of making
false and defamatory allegations . . . in email correspondence to Judge
Mason Barrett and Victor R. Donovan on Wednesday May 31, at 11:52
AM. These allegations include, but are not limited to, the following:
10

“On more than one occasion Mr. Merriweather has sexually harassed
me after repeated efforts to stop.” In the same email you also state, “In
any case I’ve filed a complaint with the EEO office.”
(Doc. 73-5, p. 33; see also Doc. 73, p. 55, ¶ 210). The letter demanded that Mr.
Hawthorne make a public retraction or face a civil defamation suit. (Doc. 73-5, p.
33).
On June 13, 2017, Mr. Hawthorne sent an email to union executives at District
5 and to the executive board of Local 1858, informing them of the complaint he had
filed against Mr. Merriweather and asking that they remove Mr. Merriweather from
his position as Local 1858 president pending the outcome of the investigation into
the complaint. (Doc. 73, pp. 18–19, ¶¶ 72, 79; Doc. 73-5, p. 2).
Until June 13, 2017, Mr. Hawthorne had served as the local union assistant
vice president for the Logistics Support Activities – “LOGSA” employees. (Doc.
16-8, p. 2). On June 13, 2017, Mr. Merriweather removed Mr. Hawthorne from the
position, stating:
This action has been taken because on numerous occasions you have
made slanderous and untrue accusations against this . . . [p]resident to
individuals in person and in writing. You have also conducted a
personal vendetta against this [p]resident in order to denigrate my
reputation and my position as . . . [p]resident. [I]t is my intent to prefer
charges against you with the Local Executive Board who shall appoint
a Committee of Investigation for you engaging in conduct unbecoming
a union member.
(Doc. 16-8, p. 3; see also Doc. 73, pp. 18, 20, ¶¶ 74, 80). On June 14 or 15, 2017,
Mr. Hawthorne, via an email message to EEO counselor Brenda Joyce Cammon,
11

amended his EEO complaint to also add that Mr. Merriweather had removed him
from his union position in reprisal for the filing of the initial complaint. (Doc. 73,
pp. 19, 20, ¶¶ 79, 81, 84; Doc. 73-1, p. 2).
Ms. Cammon interviewed Mr. Merriweather on June 14, 2017. During the
interview, Mr. Merriweather acknowledged calling Mr. Hawthorne “his Boo Boo,”
but stated that he did not realize that Mr. Hawthorne felt that the term was sexual in
nature. (Doc. 73, p. 6, ¶ 17; Doc. 73-1, p. 4). Mr. Merriweather stated that he was
shocked when Mr. Hawthorne got upset, explaining that the two were friends and
often “clowned around.” (Doc. 73, p. 6, ¶ 17; Doc. 73-1, p. 4). According to Mr.
Merriweather, Mr. Hawthorne became angry, “was hovering over [Mr.
Merriweather] in an aggressive manner,” and was touching Mr. Merriweather. (Doc.
73-1, p. 4). Mr. Merriweather stated that he became angered at Mr. Hawthorne’s
reaction, so he continued to call Mr. Hawthorne “his Boo Boo,” even after the two
were separated. (Doc. 73, p. 6, ¶¶ 17–18; Doc. 73-1, p. 4).7 Mr. Merriweather denied
asking Mr. Hawthorne to cook for him. (Doc. 73-1, p. 4).
Mr. Merriweather “indicated” to the EEO counselor that he removed Mr.
Hawthorne from the union position because Mr. Hawthorne filed the sexual
harassment complaint against Mr. Merriweather. (Doc. 73-1, p. 4). The EEO

7

Mr. Merriweather could not recall two bar patrons asking him to stop calling Mr. Hawthorne “his
Boo Boo.” (Doc. 73-1, p. 4). He remembers only an unknown individual separating the two.
12

counselor’s report states that Mr. Merriweather said that he “wouldn’t feel
comfortable meeting with [Mr. Hawthorne] alone.” (Doc. 73-1, p. 4).
In his amended complaint, Mr. Hawthorne alleges that on June 19, 2017, he
contacted the Army EEO office regarding the correspondence from Mr. Alfonso and
asked that an additional claim of “obstruction” be added to his (Mr. Hawthorne’s)
EEO complaint. (Doc. 73, p. 21, ¶ 86). Mr. Hawthorne’s email to Ms. Cammon
states:
would like to file an additional . . . complaint of retaliation against the
Agency and/or . . . Local 1858 and/or [the] 5th District for . . . creating
a hostile and intimidating work environment along with ENDEAVORS
TO INFLUENCE me to drop my sexual harassment [complaint] against
Abner Merriweather[.]
(Doc. 73-5, p. 8; see also Doc. 73, p. 21, ¶ 86; Doc. 73-1, p. 7) (capitalization in
original). In that email, Mr. Hawthorne referred to Mr. Alfonso’s June 5, 2017 letter
as “obstruction of justice and [a] threat to intimidate a witness.” (Doc. 73-5, p. 9).
The email continued: “I am asking the EEO office to add the claim of obstruction of
Justice . . . against Abner Merriweather, . . . Local 1858, [the] 5th District and the
Army Agency.” (Doc. 73-5, p. 9). Mr. Hawthorne also stated that he “would like
to file these additional base complaints of retaliation against the Agency and/or . . .
Local 1858 for claims of creating a hostile, intimidation and/or creating a work
environment [sic] pursuant to Title VII’s 42 USC 2000e-3(a).” (Doc. 73-5, p. 9; see
also Doc. 73-1, p. 8). Continuing, Mr. Hawthorne wrote:
13

I would also like to make the claim that the employer and/or . . . [L]ocal
1858 (executive board as has been notified) and or the Army Agency
participated in . . . [local union] [p]resident and Army employee Abner
Merriweather[’s] retaliation against me when they did not take proper
action to restrict Abner Merriweather’s duties as [the] UNION
[p]resident and /or [an] Army Employee.
(Doc. 73-1, p. 8; Doc. 73-5, p. 9). According to the email, this “continued to create
a hostile and intimidating work environment while also encouraging the union
[p]resident and Army Employee Abner Merriweather[’s] obstruction.” (Doc. 73-1,
pp. 8–9; Doc. 73-5, p. 9). Mr. Hawthorne ended:
So Ms. Cammon please file this additional claim of Army Agency
and/or . . . Local 1858 Executive Board and/or . . . [the] 5th District
creating a hostile and intimidat[ing] work environment pursuant [to the]
letter from Abner Merriweather[’s] [l]egal office.
(Doc. 73-1, p. 10; Doc. 73-5, p. 11). Chanley Pickard, an Army EEO specialist,
responded to Mr. Hawthorne’s June 19, 2017 email the same day, writing: “your
email is Acknowledged [sic], this claim will be added to your current [complaint].
(Doc. 73, p. 55, ¶ 211; Doc. 73-1, p. 6).
On June 22, 2017, Michelle Perrin, the LOGSA union vice president, sent the
following email to the Local 1858 Executive Board:
I know that you all are aware of the fact that Mr. David Hawthorne filed
an EEO complaint [against] President Abner Merriweather. I will be
Mr. Hawthorne’s Representative in his EEO case. Mr. Hawthorne was
removed from his duties for engaging in conduct unbecoming a union
member per Article XXIII, Section 2(e) of the American Federation of
government Employees AFL-CIO Constitution, dated August 2015.
Mr. Hawthorne was within his rights as a bargaining unit employee to
file a complaint. It just so happen[s] that the complaint was filed against
14

the President of Local 1858. I want to make sure that Mr. Hawthorne
was removed for the right reasons and not just because he filed a
complaint against the [p]resident. I am requesting that the Executive
Board look into this matter.
(Doc. 73-5, p. 1; see also Doc. 73, pp. 21–22, ¶ 89).
On June 27, 2017, Everett Kelly, who is the national vice president for District
5, wrote the following in an email to Theodore Stewart, assistant president of Local
1858:
I sent all the documents to the National office seeking advice as it
relates to brother Hawthorn[e]’s allegations. It is the opinion of the
[a]ttorney after going through all the attachments that this does not rise
to the level of unlawful sexual harassment. The [a]ttorney [i]ndicated
that some would say that there are no sexual connotations to the name
“boo boo”. But even if there were, three times is not frequent and it is
not severe/egregious. It is my opinion that there is nothing for any of
us to do at this time.
(Doc. 73-5, pp. 17–18; see also Doc. 73, p. 22, ¶¶ 90–91).
On July 14, 2017, EEO Director Jennifer S. Thompson issued the Army’s
“final decision” dismissing Mr. Hawthorne’s EEO complaint “in accordance with
29 CFR 1614.107(a)(1) and AR 690-600 Chapter 4, Section II, 4-4a(1)” for “failure
to state a claim.” (Doc. 73-9, pp. 28-33; see also Doc. 73, pp. 7, 26, ¶¶ 23, 103; Doc.
73-1, pp. 20–25). In her written opinion, Director Thompson noted that Mr.
Hawthorne’s

complaint

“alleged

Reprisal

for

previous

EEO

activity

(ARREDSTON17MAY01829) and discrimination on the bases of Sex (male).”
(Doc. 73-9, p. 28; see also Doc. 73-1, p. 20). She also noted that Mr. Hawthorne
15

based his claims only on Mr. Merriweather’s rescinding Mr. Hawthorne’s
appointment as assistant vice president of Local 1858 LOGSA employees, the
incident at the bar on May 30, 2017, and Mr. Merriweather’s alleged request that
Mr. Hawthorne cook for Mr. Merriweather. (Doc. 73-1, p. 20; Doc. 73-9, p. 28). In
other words, in her written opinion, Director Thompson did not expressly
acknowledge all of the additional claims Mr. Hawthorne set out in his email of June
19, 2017, and which Ms. Pickard stated would be added. Director Thompson wrote:
The Commission has long defined an “aggrieved employee” as one who
suffers a present harm or loss in respect to a term, condition, or privilege
of employment for which there is a remedy. According to Smith v.
Veterans Affairs, EEOC Appeal No 01A32477, actions by union
officer against union official fail to show an agency action adversely
affecting Complainant’s terms, conditions, or privileges of employment
due to the alleged action of the agency for which there is a remedy. See
Diaz v. Department of the Air Force, EEOC request No. 02931049. The
alleged discrimination actions were not within the purview of EEOC
regulations if the alleged discriminating union officials were acting in
their representational capacity.
(Doc. 73-9, pp. 28–29; see also Doc. 73, p. 25, ¶ 101; Doc. 73-1, pp. 20–21).
Mr. Hawthorne appealed Director Thompson’s decision to the Equal
Employment Opportunity Commission’s Office of Federal Operations, and he filed
an EEO complaint against Director Thompson. On September 7, 2017, the Army
filed its brief in opposition to the appeal. (Doc. 39-1, pp. 214–28). In the amended
complaint, Mr. Hawthorne calls this brief a Final Agency Decision or “FAD”. (Doc.

16

73, p. 26, ¶ 103) (citing Doc. 39-1, p. 214).8

The brief uses language like the

language Director Thompson used in her opinion, including that “[a]s a general rule,
discriminatory actions are not within the purview of EEOC regulations if the alleged
discriminating union official acts in his or her representational capacity.” (Doc. 391, p. 217).
On November 21, 2017, the OFO affirmed the agency’s decision, writing that
“[a]s [Mr. Hawthorne] is challenging actions directly related to his position within
the union, he must raise this claim within the union grievance process.” (Doc. 73-3,
p. 17). The OFO affirmed dismissal of the sexual harassment and hostile work
environment claims, stating that “[t]he actions alleged, without more, concern
isolated incidents that are simply insufficiently severe or pervasive to state a valid
hostile work environment claim.” (Doc. 73-3, p. 17). 9
Mr. Hawthorne had 30 days from the date he received the EEOC’s denial to
seek reconsideration. (Doc.73-1, p. 21). In an April 11, 2018 email, Mr. Hawthorne
requested that the OFO reconsider its decision. (Doc. 73-3, p. 21). In his request
for reconsideration, he asserted that he did not receive the denial until April 10, 2018.

8

Counsel for the Army explained Mr. Hawthorn’s misnomer to him in an email dated October
19, 2017. (Doc. 73-3, p. 14; Doc. 73, p. 28, ¶ 111).
9

The OFO also stated that to the extent that Mr. Hawthorne was “challenging actions directly
related to his position within the union, he must raise this claim within the union grievance
process.” (Doc. 73-3, p. 17).
17

(Doc. 73-3, p. 21). The record does not indicate whether the OFO took additional
action on Mr. Hawthorne’s administrative effort to obtain relief. 10 On May 3, 2018,
Mr. Hawthorne filed in this Court a “Motion for Emergency Injunctive Relief” in
which he asked this Court to prevent the Army from dismissing this EEO claim for
failure to state a claim. (Doc. 1).
As noted, in September 2017, Mr. Hawthorne made an EEO complaint against
Director Thompson “because she dismissed [his] [EEO] complaint [concerning Mr.
Merriweather] . . . without dismissing all the claims.” (Doc. 73, pp. 7, 25, ¶¶ 23,
100; Doc. 73-6, p. 9).

In his complaint concerning Director Thompson, Mr.

Hawthorne alleged:
the Agency counsel did not add all his claims that were acknowledged,
and also truncated others, as such they restrained him from filing a
complaint when they dismissed his complaint without adding all of his
claims, thereby also denying him his due process.
(Doc. 73-1, p. 43). Mr. Hawthorne alleged that the claims were “acknowledged” in
the June 19, 2017 email from Chanley Pickard and were ignored in Director
Thompson’s decision. (Doc. 73-1, p. 43).
Mr. Hawthorne called Director Thompson’s dismissal “intentional” and
claimed that it was in retaliation because “I won an appeal over turning [sic] her

10

In its brief in support of its motion to dismiss, the Army states that it moved to dismiss the
pending OFO appeal because the instant case overlapped with that administrative action. (Doc.
83, p. 3).
18

efforts to deny my claim in case number ARREDSTON15AUG04058.” (Doc. 736, p. 9). In the email triggering the EEO process concerning his complaint against
Director Thompson, Mr. Hawthorne also complained “against Army Agency
Attorneys relative to their Final Agency Decision (FAD) dated September 7, 2017.”
(Doc. 73-6, p. 9). Mr. Hawthorne alleged that when the decision in case number
ARREDSTON15AUG04058 was overturned, an investigation discovered that the
Army’s attorneys made intentional misrepresentations to the EEOC. (Doc. 73-6, p.
9). 11 Mr. Hawthorne alleged that the use of “the same language” in the Army’s brief
in opposition to his appeal made it clear to him that Director Thompson and the
Army were retaliating against him because of the results of that investigation. (Doc.
73-6, p. 9). Mr. Hawthorne designated the claim against Director Thompson “Claim
1” and the claim against the Army attorneys “Claim 2.” (Doc. 73-6, p. 9).
On November 16, 2017, Mr. Hawthorne asked the Birmingham, Alabama
District Office of the EEOC to appoint “an Equal Employment Opportunity
Commission administrative judge” to hear this EEO complaint. (Doc. 73, p. 29, ¶
118; Doc. 73-7, p. 5).
On December 21, 2017, Army EEO Director Rufus B. Caruthers, Jr. issued
the Army’s final decision dismissing Mr. Hawthorne’s EEO complaint against

11

The misrepresentations
ARREDSTON13JUN02070.

allegedly

took
19

place

in

agency

case

number

Director Thompson and the Army attorneys. (Doc. 73, pp. 7–8, 33, ¶¶ 24, 131; Doc.
73-8, pp. 7–11).

Director Caruthers’s opinion explained that “29 CFR

1614.107(a)(8) and AR 690-600 Chapter 4-4(14)” forbade such “spin-off
complaints,” or complaints “about the processing of an existing complaint.” (Doc.
73, p. 33, ¶ 131; Doc. 73-8, p. 7).
On January 29, 2018, apparently in response to Mr. Hawthorne’s request for
the appointment of an administrative law judge, EEOC Administrative Law Judge
Justice Bean sent Mr. Hawthorne an order regarding this claim. (Doc. 73, pp. 8, 35,
¶¶ 25, 135). The Court has not located a copy of the order in the record. Mr.
Hawthorne alleges that in the order, Judge Bean “stated there were 5 questions the
Judge wanted me to reply to relative to [the] complaint against EEO [D]irector
Jennifer Thompson.” (Doc. 73, pp. 8, 35, ¶¶ 25, 135). On February 8, 2018, Mr.
Hawthorne responded to Judge Bean’s order. (Doc. 73, p. 8, ¶ 25; Doc. 73-9, pp. 1–
7). It is unclear from the amended complaint what, if anything, came of the
proceedings that allegedly involve ALJ Bean.
C. Mr. Hawthorne’s EEO Complaint Against Joe Sanchez, Michael
Drylie, and David Martin
Mike Drylie is the Engineer Team Lead in Mr. Hawthorne’s department.
(Doc. 73, p. 8, ¶ 27). Mr. Hawthorne alleges that in late November or early
December of 2017, during a meeting with him and another engineer, Mr. Drylie “cut
[Mr. Hawthorne] off, yelled, hissed, and puffed” every time Mr. Hawthorne tried to
20

offer input. (Doc. 73-11, p. 24). Mr. Drylie did not treat the other engineer in the
meeting the same way. (Doc. 73-11, p. 24). After the meeting, Mr. Drylie
apologized to Mr. Hawthorne for this conduct. (Doc. 73-11, p. 24).
In January or February of 2018, Mr. Drylie approached Mr. Hawthorne at a
restaurant and asked Mr. Hawthorne if he (Mr. Hawthorne) was the whistle-blower
who had prompted an investigation from the Office of Special Counsel. (Doc. 73,
p. 14, ¶¶ 56–57; Doc. 73-10, p. 15; Doc. 73-11, p. 24).
Around the end of January 2018, Mr. Drylie and Mr. Hawthorne became
involved in an argument and took the dispute to James Baker, the Deputy Program
Manager. (Doc. 73-11, p. 24).
On February 5, 2018, after Mr. Hawthorne would not give Mr. Drylie any
specifics about what Mr. Hawthorne planned to discuss during the next Integrated
Product team meeting, Mr. Drylie called Mr. Hawthorne and, “in a hostile voice,”
began cursing at Mr. Hawthorne. (Doc. 73-11, p. 24). Mr. Drylie said, “David what
the fuck is wrong with you?” (Doc. 73-11, p. 24). Mr. Hawthorne responded, “you
are not going to be fucking cursing at me.” (Doc. 73-11, p. 24). On February 6,
2018, Mr. Hawthorne sent Mr. Baker an email recounting this event and later spoke
to Mr. Baker about it in person. (Doc. 73-11, p. 24).
In mid-February of 2018, Mr. Drylie told Mr. Hawthorne about a conversation
with Jose Sanchez, a Logistics Management Specialist Supervisor. (Doc. 73-11, p.
21

24). Mr. Drylie told Mr. Hawthorne that Mr. Sanchez “wanted to grow [Mr. Drylie]
for a supervisory position.” (Doc. 73-11, p. 24).
In a March 14, 2018 email, Mr. Drylie asked Mr. Hawthorne and two other
engineers “to make an attempt at developing wear criteria for a few enrolled weapon
systems which do not currently have criteria.” (Doc. 73, p. 9, ¶ 29; Doc. 73-10, pp.
19–20). On March 26, 2018, Mr. Hawthorne sent an email to Mr. Drylie to explain
that he completed the project “best [he] could” because Mr. Drylie had only given
“limited guidance on it.” (Doc. 73, pp. 10, 11, ¶¶ 35, 41; Doc. 73-10, pp. 17–18).
Mr. Hawthorne asserted that Mr. Drylie had explained the assignment for about an
hour and refused to answer any questions after that time. (Doc. 73, p. 10, ¶ 36; Doc.
73-10, p. 17). In the email, Mr. Hawthorne stated that he felt “singled out” because,
of the two other engineers assigned the task,
one . . . was not going to be here . . . [and] the other . . . has been working
on this type of thing form much of the 5 years I’ve been here . . . and I
was the only one to be here and never have worked this before and yet
I could not get clarity or guidance from you on the project while you
were still here.
(Doc. 73, p. 11, ¶ 41; Doc. 73-10, p. 18).
On March 29, 2018, Mr. Drylie sent a response email to Mr. Hawthorne.
(Doc. 73, p. 12, ¶ 44; Doc. 73-10, p. 16). In that response, Mr. Drylie indicated that
he was “somewhat confused and concerned by [Mr. Hawthorne’s] Email.” (Doc.
73, p. 12, ¶ 44; Doc. 73-10, p. 16). His emailed continued: “The task in question is
22

a part of your core duties and is described in both your Position Description and AR
750-1. This task is also specifically listed as a performance objective on your annual
performance plan.” (Doc. 73, p. 12, ¶ 44; Doc. 73-10, p. 16). Mr. Drylie explained
that “[o]ver the 5 years you have been in this position we have discussed the
development of evaluation criteria on multiple occasions” and that sufficient
guidance had been given on the project, not only on March 14, 2018, but in previous
meetings. (Doc. 73, p. 12, ¶¶ 45–47; Doc. 73-10, p. 16). Mr. Drylie explained that
he “did deploy a different management technique in this situation, as previous efforts
over the previous 5 years did not seem to be working.” (Doc. 73, p. 12, ¶ 48; Doc.
73-10, p. 17). Mr. Drylie stated that he had “wanted each of [the engineers] to work
the assignment on [their] own in the hopes that [they] would learn the process for
[themselves] and also provide an opportunity for process improvement by having 3
additional sets of eyes on [Mr. Drylie’s] work.” (Doc. 73, p. 12, ¶ 47; Doc. 73-10,
p. 16). Mr. Drylie also wrote:
I am sorry that the message that this was purely a learning exercise and
that my sole expectation was that you made an attempt was not
completely clear to you. In this sense I believe the exercise was
successful and effective, and I believe this is illustrated in the
completed project you submitted.
(Doc. 73, p. 12, ¶ 48; Doc. 73-10, p. 17).
On April 2, 2018, Mr. Hawthorne sent a lengthy reply to Mr. Drylie’s email.
(Doc. 73, pp. 13–15, ¶¶ 52–61; Doc. 73-10, p. 14–16). In part of that reply, Mr.
23

Hawthorne called Mr. Drylie’s previous email “an absolute mischaracterization of
me, my work ethic and my ability to understand and do my job.” (Doc. 73, pp. 13–
14, ¶ 53; Doc. 73-10, p. 14). Mr. Hawthorne wrote, among other things:
[I]n your March 30th 2018 reply to me you intentionally misrepresented
what kind of work you did with me and you intentionally
misrepresented over what period of time you did that work. because
you have not worked with me for 5 years on wear analysis. What you
have done is defamed me, used the profanity cursing at me,
vociferously yelled at me in front of my team members and at times
vehemently. and it all started after you asked me about being a whistle[]blower and ramped up after you were told by Joe Sanchez that he
would be grooming you for management to promote you supervisor.
In the month of January/February you saw me out at cantina Laredo
restaurant with friends in Bridge Street and made your way over to me
to ask me if I was the whistle blower that prompted the (OSC)
investigation. I of course said to you, “no I was not”, after a long gazing
stair of doubtful thought to my answer you an a few more minutes of
small talk you left.
(Doc. 73, p. 14, ¶¶ 56–57; 73-10, p. 15). Mr. Hawthorne’s reply email concluded:
“I've filed a reprisal EEO complaint against Joe Sanchez and you for the continued
hostile work environment and defamation of character.” (Doc. 73, p. 15, ¶ 61; Doc.
73-10, p. 16).
In an April 2, 2018 email to Ms. Pickard in the Army’s EEO office, Mr.
Hawthorne began the EEO complaint process against Mr. Sanchez and Mr. Drylie
for “reprisal.” (Doc. 73, p. 13, ¶ 50; Doc. 73-10, p. 1). The email explained:
I claim that Joe Sanchez and/or Agency has recently informed Michael
Drylie, within or before the month of March 2018, that they the Agency
was going to begin grooming Michael Drylie for a supervisor position;
24

in return Michael Drylie assisted Joe Sanchez and/or Agency in
intentionally and maliciously defaming, belittle me in front of my
coworkers and also literally and literally and unequivocally lying on my
in a disparaging way relative to my work at LOGSA which ultimately
affects the perception of someone wanting to hiring me for another
federal position or federal training assignments I may apply for within
or outside of LOGSA agency.
He has also made the work environment so uncomfortable I had to take
that issue to my immediate manager Jim Baker . . ..
I believe these actions are Based on previous cases involving Joe
Sanchez where he and other Agency managers, but specifically Joe
Sanchez and Agency legal counsel because of the nexus to my previous
cases, have been cited for intentionally not telling the truth under oath
and/or on official agency responses to the EEOC OFO during an
investigation for case number ARREDSTON13JUL02070 and
ARREDSTON15AUG04058.
(Doc. 73-10, p. 1; Doc. 73, pp. 50–51, ¶¶ 198–199) (citation to exhibits
omitted).
In an April 9, 2018 email to Katrisa Norwood in the Army EEO office,
Mr. Hawthorne wrote:
NEW CLAIM AGAINST THE LOGSA DEPUTY COMMANDER
DAVID MARTIN:
I would like to file another claim against David Martin Deputy Director
of LOGSA. I claim that each time that I’ve made a title VII complaint
against members of LOGSA it HAS been when the LOGSA Military
Commander has be in Transition to LOGSA or has been away on leave
from LOGSA and that Deputy Director David [M]artin HAS been
directly or indirectly involved with those LOGSA employees I made
the claims against.
I believe proof of this is that when I made a claim against the LOGSA
Agency in 2013 for complaint number ARREDSTON13JUL02070 one
of those claim were made against David Martin for his direct
25

involvement, while the LOGSA Military commander was absent and
LOGSA was awaiting its new Army Military commander; and at the
time his subordinate management official told me that if I did not drop
my claim that there would be collateral damage to my career ... I did
not
drop
my
claim
and
every
time
since
that
ARREDSTON13JUL02070 complaint like my current complaint here
in 2018 against the LOGSA agency David Martin has been at the head
of the LOGSA organization while the Army commander has been away
on leave or in transition to come command LOGSA. So Ms. Katrisa
Norwood please add this claim against David Martin to my current
complaint.
(Doc. 73-10, p. 21; Doc. 73, pp. 35–36, 51, ¶¶ 136–137, 200). On April 25, 2018,
Mr. Hawthorne emailed Ms. Norwood again writing:
Please add the Bases to my current 2018 complaint of Age.
I did not think of it or make the connection before but now, today, that
I think about it I believe these retaliatory efforts of not being truthful
about my work and performance has to do with retaliation from
previous complaints and the fact that I am older than all of my peers in
my group and the Agency just believe me to be expendable because of
my age as well as the retaliation I was promised if I did not drop my
previous e EEO complaints.
So please add the Bases of Age discrimination to my current 2018
complaint against the LOGSA Agency.
(Doc. 73-11, p. 4, Doc. 73, p. 51, ¶ 201).
On July 23, 2018, Mr. Hawthorne mailed a request for a hearing on this claim
to the EEOC. (Doc. 73, p. 38, ¶ 149; Doc. 73-12, p. 1; Doc. 73-13, p. 2). The EEOC
received this request via certified mail on July 24, 2018. (Doc. 73, p. 38, ¶ 150; Doc.
73-13, p. 1).

26

Director Thompson dismissed this EEO complaint on July 24, 2018 “in
accordance with 29 CFR 1614.107(a)(1), under 1614.103, and AR 690-600 Chapter
4, Section II, 4-4a(1)” for “failure to state a claim.” (Doc. 73, p. 38, ¶ 149); Doc.
73-5, p.12; Doc. 73-13, p. 16). Director Thompson wrote:
In your formal complaint of discrimination, you alleged discrimination
on the bases/basis of Age (49, 1968) and Reprisal
(ARREDSTON15AUG04058 and ARREDSTON13JUL02070) when:
a. On 29 March 2018, Michael Drylie, Team Lead, Oil and Analysis
Program, LOGSA, age (39: YOB: 1979) and reprisal (previous EEO
activity: unaware and none), sent an email stating you worked in the
Oil and Analysis Program for five years and that he deployed
different management techniques; which you feel defamed you.
(Doc. 73-5, p. 12). Director Thompson continued:
[T]he test to analyze the actions of an employer are whether those
actions could reasonably deter an individual from filing or pursuing a
complaint of discrimination in addition to an adverse employment
action. The comments [alleged] were not accompanied by any
disciplinary or other action, nor do they rise to the level that may
dissuade an individual from pursuing a complaint of discrimination in
the future. [Mr. Hawthorne] failed to allege that [he] suffered a personal
loss or harm with respect to a term, condition, or privilege of
employment.
(Doc. 73-5, p. 12, Doc. 73, pp. 51–52, ¶ 202). An August 17, 2018 letter from the
Army to Mr. Hawthorne states that Mr. Hawthorne “received [the] Notice of
Dismissal on 8 August 2018.” (Doc. 73-13, p. 7).
Unbeknownst to Mr. Hawthorne, on July 19, 2018, prior to the dismissal,
Director Thompson had forwarded Mr. Hawthorne’s EEO complaint, and a copy of
27

her proposed dismissal order, to Brian Frye, Army agency counsel “for legal
sufficiency review.” (Doc. 73-13, p. 15; Doc. 73, pp. 39–40, 45–46, 52, ¶¶ 154, 179,
204). In response, on July 23, 2018, Mr. Frye recommended that Director Thompson
“revise Mr. Hawthorne’s claim in her proposed order, to more closely track” Mr.
Hawthorne’s “‘actual words . . ..’” (Doc. 73-13, p. 15; Doc. 73, p. 52, ¶ 205). Also,
Mr. Frye reported that, in his opinion, “Mr. Hawthorne’s formal complaint does
sufficiently state a claim for purposes of acceptance of the investigation.” (Doc. 7313, p. 15; Doc. 73, p. 39–40, 46, 52, ¶¶ 154, 180, 203).
In an August 10, 2018 email to Director Rufus and Director Thompson, Mr.
Hawthorne began another EEO complaint process against Director Thompson for
sex discrimination in her handling of Mr. Hawthorne’s EEO complaint against Mr.
Drylie, Mr. Sanchez, and Mr. Martin. (Doc. 73, p. 40, ¶ 157; Doc. 73-4, pp. 1–3).
Mr. Hawthorne complained that Director Thompson dismissed his EEO complaint
but allowed a similar claim by another female employee. (Doc. 73-4, p. 2; Doc. 73,
p. 41, ¶¶ 160–161).12
III.

ANALYSIS
A. The Claims Stated in the Amended Complaint
Mr. Hawthorne asserts several claims against the Army. (Counts 1-5, 8). In

Counts 1-4, Mr. Hawthorne contends that Army Reg. 690-600 ¶ 4-4.a.(1) violates

12

The formal complaint of discrimination for this claim appears at Doc. 84-1, pp. 17–22.
28

section 706 of the Administrative Procedures Act, 5 U.S.C. ¶ 706. (Doc. 73, pp. 47–
50, 54–55, ¶¶ 188, 191, 194, 196, 216). In Count 5, Mr. Hawthorne alleges that the
Army discriminated against him on the basis of sex in violation of Title VII of the
Civil Rights Act of 1964 42 U.S.C. §§2000e through 2000e-17, when Director
Thompson dismissed his 2018 EEO complaint. (Doc. 73, p. 56, ¶ 215). In Count 8,
Mr. Hawthorne alleges that the Army “breached its duty of care when it did not
protect [Mr. Hawthorne]” from Mr. Merriweather’s alleged harassment and
retaliation. (Doc. 73, p. 59, ¶ 223). In Count 8, Mr. Hawthorne also asserts that the
Army is liable under Title VII for discrimination based on sex, sexual harassment,
creating a hostile work environment, and retaliation. (Doc. 73, p. 60, ¶ 235).
In his amended complaint, Mr. Hawthorne includes claims against defendants
other than the Army. 13 In Count 6, Mr. Hawthorne alleges that Local 1858 and Mr.
Merriweather are liable under Title VII for sexual harassment. (Doc. 73, p. 58,
¶220). In Count 7, Mr. Hawthorne alleges that Local 1858 “breached its duty of care
when it did not protect” him from Mr. Merriweather’s alleged harassment and
retaliation. (Doc. 73, pp. 58–59, ¶¶ 221). Similarly, in Count 10, Mr. Hawthorne

13

Mr. Hawthorne did not formally name Local 1858, District 5, or the national union as parties.
(Doc. 73, p. 2). But, as noted earlier, “[a] document filed pro se is to be liberally construed and a
pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson, 551 U.S. at 94. The union entities acknowledge they
have been sued. When the amended complaint is viewed as a whole, it is clear to the Court that
Mr. Hawthorne intended to sue, and makes claims against, these entities. Accordingly, the Court
construes the amended complaint as being filed against Local 1858, District 5, and the national
union.
29

alleges that Local 1858 “breached its duty of care” when, “after being made aware
of the sexual harassment complaint and the retaliation,” the local union did not
initiate an investigation. (Doc. 73, p. 61, ¶ 237).
In Count 9, Mr. Hawthorne alleges that District 5 and Everett Kelley
“breached their duty of care” when Mr. Kelley wrote his email of June 27, 2017, in
which he stated that Mr. Merriweather’s conduct did not rise to the level of sexual
harassment, and “there is nothing for any of us to do at this time.” (Doc. 73-5, pp.
17–18; Doc. 73, p. 60, ¶ 236). In Count 11, Mr. Hawthorne states that the national
union and David Cox, the president of the national union, “breach[ed] [their] duty
of care . . . when [their] attorneys, according to Everett Kelley . . . advised [Mr.
Kelley] that they should do nothing because [the] claim of sexual harassment did not
rise to unlawful [s]exual [h]arassment.” (Doc. 73, p. 61, ¶¶ 239–239).
B. Claims Based on Violations of Criminal Statutes
The amended complaint contains many references to federal criminal statutes.
(See Doc. 73, pp. 21, 28, 41 ¶¶ 86, 115, 162 (18 U.S.C. § 1505); Doc. 73, pp. 44, ¶
174 (18 U.S.C. §1001(a)).

In his response to the union defendants’ motion to

dismiss, Mr. Hawthorne states that he is “making the claim and requesting the civil
penalties [for] 18 USC 1505 and 18 USC 1001 violations.” (Doc. 80, p. 13, ¶ 35).
Recently, in an opinion in another case filed by Mr. Hawthorne, Magistrate Judge
Herman N. Johnson explained that neither 18 U.S.C. § 1001 nor 18 U.S.C. § 1505
30

creates a private right of action. See Hawthorne v. McCarthy, No. 5:16-CV-01525HNJ, 2020 WL 836840, at *7 (N.D. Ala. Feb. 20, 2020). The Court adopts Judge
Johnson’s analysis concerning §§1001 and 1505, and the Court will dismiss all
claims based on 18 U.S.C. §§1001 and 1505.
C. The Claims Against the Individual Defendants
In his response to the union defendants’ motion to dismiss, Mr. Hawthorne
states:
To the extent that [defense counsel] believes that I am suing Abner
Merriweather and David Mollett or Mr. David [Cox] personally, he is
wrong. I am suing the Organization of . . . Local 1858 . . . [the] 5th
District . . . and the . . . National office . . . for said reasons as outlined
in ECF 73.
(Doc. 80, pp. 14–15, ¶ 40). Based upon this representation, the Court will dismiss
all claims against Mr. Merriweather, Mr. Cox, and Mr. Mollett. 14
D. The Claims Against the Army
i.

The Administrative Procedures Act Claims

In dismissing two of Mr. Hawthorne’s EEO complaints, the Army cited Army
Reg. 690-600 ¶ 4-4.a.(1) which allows an EEO officer to dismiss an EEO complaint

In his amended complaint, Mr. Hawthorne alleges that Mr. Merriweather is liable for sexual
harassment under Title VII. (Doc. 73, p. 58, ¶ 220). As a matter of law, Mr. Merriweather cannot
be liable for a Title VII violation because he is not Mr. Hawthorne’s “employer.” See Dearth v.
Collins, 441 F.3d 931, 933 (11th Cir. 2006) (“[A] Title VII claim may be brought against only the
employer and not against an individual employee.”); 42 U.S.C. § 20003-16(c) (requiring a civil
action by a federal employee to name “the head of the department, agency, or unit” as the
defendant).
14

31

for “failure to state a claim.” (Doc. 73-1, p. 20 (ARREDSTON17MAY01829); Doc.
73-5, p. 12 (ARREDSTON18APR01146)). 15 Specifically, AR 690-600 ¶ 4-4.a.(1)
states: “A complaint or a portion of a complaint will be dismissed by the EEO officer
(subject to final decision by the Army Director of EEO or designee) if” the complaint
fails to state a claim. “In determining whether a complaint states a claim under 29
CFR Section 1614.103, the proper inquiry is whether the conduct, if true, would
constitute an unlawful employment practice under the EEO statutes.” AR 690-600
¶ 4-4.a.(1).
In Counts 1–4, Mr. Hawthorne asks this Court “to hold unlawful,” “set aside,”
“declare unconstitutional,” and/or “invalidate” Army Reg. 690-600 ¶ 4-4.a.(1)
because, Mr. Hawthorne argues, the regulation violates section 706(2), subsections
A through D, of the Administrative Procedures Act – the APA. (Doc. 73, pp. 47–
50, 54–55, ¶¶ 188, 191, 194, 196, 216). Section 706(2) provides, among other

15

The United States Court of Federal Claims has described the EEO process as follows:
The procedures for accepting and dismissing EEO complaints are governed by
Army Regulation 690–600. Pursuant to this regulation, an EEO supervisor reviews
a formal EEO complaint to determine if the complaint meets any of the indicated
grounds for dismissal (e.g., the complaint has failed to state a claim, is untimely, or
is moot). If the EEO supervisor identifies no ground for dismissing the complaint,
the supervisor is required to provide the complainant with a written decision
accepting the claim as well as request assignment of the case to an investigator.

Santiago v. United States, 107 Fed. Cl. 154, 162 (2012).
32

things, that a district court may “hold unlawful and set aside agency action, findings,
and conclusions” that the court determines are:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right; [and/or]
(D) without observance of procedure required by law[.]
4 U.S.C. § 706.
In Count 1, Mr. Hawthorne alleges that Army Reg. 690-600 ¶ 4-4.a.(1)
violates APA § 706(2)(C), which authorizes this Court to “hold unlawful and set
aside agency action, findings, and conclusions” which are “in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right.” (Doc. 73, pp. 47–
48, ¶¶ 188–191). Title VII requires the EEOC to “issue such rules, regulations,
orders and instructions as it deems necessary and appropriate” to ensure that federal
government personnel actions “shall be made free from any discrimination based on
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a)–(b). Title
VII requires the Army, to “comply with such rules, regulations, orders and
instructions” enacted by the EEOC. 42 U.S.C. § 2000e-16(b).
Under these statutory provisions, the EEOC enacted 29 C.F.R. §
1614.109(b)—which states that “[EEOC] [a]dministrative judges may dismiss
33

complaints pursuant to § 1614.107, on their own initiative, after notice to the parties,
or upon an agency’s motion to dismiss a complaint”—and the Army enacted Army
Reg. 690-600 ¶ 4-4.a.(1)—which sets out the standard by which an Army EEO
officer shall dismiss a complaint for failure to state a claim. Mr. Hawthorne asserts
that Army Reg. 690-600 ¶ 4-4.a.(1) conflicts with 29 C.F.R. § 1614.109(b). (Doc.
73, p. 48). Mr. Hawthorne contends that the EEOC should not be able to dismiss a
claim pursuant to Army Reg. 690-600 ¶ 4-4.a.(1) without going through the process
identified in 29 C.F.R. §1614.109(b). (Doc. 73, p. 48).
Mr. Hawthorne’s argument rests on a misunderstanding of 29 C.F.R. §
1614.109(b). That regulation applies only after “a complainant requests a hearing,”
and the EEOC has appointed an administrative judge “to conduct a hearing in
accordance with the section.” 29 C.F.R. §1614.109(a). Before a request for an
administrative hearing, an agency, such as the Army, “shall dismiss an entire
complaint . . . [t]hat fails to state a claim.” 29 C.F.R. § 1614.107(a)(1).16 Therefore,
Army Reg. 690-600 ¶ 4-4.a.(1) is consistent with applicable EEOC regulations. As
the purported conflict was the only basis for Count 1, the Court will dismiss Count
1. 17

17

In each dismissal of the EEO complaints that referenced Army Reg. 690-600 ¶ 4-4.a.(1), the
Army also referenced 29 C.F.R. 1614.107(a)(1). (Doc. 73-1, p. 20 (ARREDSTON17MAY01829);
Doc. 73-5, p.12 (ARREDSTON18APR01146)).
As to ARIMCOMHQ17SEP0481 and
ARREDSTON18APR01146, Mr. Hawthorne alleges that he requested a hearing before the Army
issued a final determination of dismissal based on failure to state a claim. (Doc. 73, p. 29, 38, ¶¶
34

In Count 2, Mr. Hawthorne asks the Court to set aside Army Reg. 690-600 ¶
4-4.a.(1) because the regulation is “contrary to constitutional right, power, privilege,
or immunity” in violation of section 706(2)(B). (Doc. 73, pp. 48–49, ¶¶ 192–194).
Mr. Hawthorne lacks standing to challenge the constitutionality of Army Reg. 690600 ¶ 4-4.a(1). To have standing, Mr. Hawthorne must plead facts that indicate that
he has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Here, Mr.
Hawthorne has not alleged an “injury in fact” because, even if the Army’s regulation
is unconstitutional, he is entitled to a de novo review of his claims in federal district
court. 42 U.S.C. §2000e-16(c); 29 C.F.R. § 1614.407; 5 U.S.C. § 704. Therefore,
he has not been harmed.
In Count 3, Mr. Hawthorne alleges a violation of section 706(2)(D), in that
the Army regulation was enacted “without observance of procedure required by
law.” (Doc. 73, pp. 49–50, ¶¶ 195–196). Court’s typically read section 706(2)(D)
as requiring a reviewing court to invalidate an agency rule that does not comport
with the APA’s rulemaking procedures. Comite de Apoyo a los Trabajadores
Agricolas v. Solis, 933 F. Supp. 2d 700, 709 (E.D. Pa. 2013); Record Buck Farms,

118, 149–150; Doc. 73-7, p. 5; Doc. 73-12, p. 1; Doc. 73-13, pp.1–2). But in Count I, Mr.
Hawthorne challenges the validity of Army Reg. 690-600 ¶ 4-4.a (1). In Count I, he does not
challenge the way in which the Army applied Army Reg. 690-600 ¶ 4-4.a (1).
35

Inc. v. Johanns, 510 F. Supp. 2d 868, 874 (M.D. Fla. 2007); Ocean Conservancy v.
Evans, 260 F. Supp. 2d 1162, 1186 (M.D. Fla. 2003). Those procedures include,
among other things, publishing general notice of the proposed rule in the Federal
Register and giving “interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments with or without
opportunity for oral presentation.” 5 U.S.C. § 553(b), (c). The amended complaint
makes no allegation that the issuance of Army Reg. 690-600 ¶ 4-4.a(1) ran afoul of
these rules or any others set out in the APA.
The language of section 706(2)(D) does not expressly limit review to only
whether the Army followed “rulemaking procedures” in enacting Army Reg. 690600 ¶ 4-4.a(1), but Mr. Hawthorne offers no other reason for invalidating the
regulation. He alleges only that there is “no [C]ongressional or constitutional
authority for the Army to use that regulation” and that the regulation conflicts with
29 C.F.R. § 1614.109(b). (Doc. 73, p. 50, ¶ 196). For the reasons previously stated,
these arguments are without merit.
Section 706(2)(A) allows this Court to set aside agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 4 U.S.C. §706(2)(A). In Count 4, Mr. Hawthorne alleges that, with regard to
the

EEO

complaints

in

ARREDSTON18APR01146

and

ARREDSTON17MAY01829, the Army used Army Reg. 690-600 ¶ 4-4.a(1) against
36

him in an “arbitrary” and “capricious” manner, and abused its discretion, in violation
of section 706(A). (Doc. 73, pp. 50, 53, 54, 55, ¶¶ 197, 210, 216, 217). 18 Mr.
Hawthorne alleges that “based on the Army’s director’s arbitrary and capricious use
of the Army regulation . . . this regulation is suitable for invalidation.” (Doc. 73, pp.
54–55, ¶ 216).
Even if the Army’s decision to dismiss Mr. Hawthorne’s EEO complaints
were arbitrary and capricious, the Court would not have to invalidate Army Reg.
690-600 ¶ 4-4.a(1) to provide relief to Mr. Hawthorne. As noted, Mr. Hawthorne is
entitled to a de novo review of the merits of those decisions here in federal district
court. Therefore, if the Army erred when it dismissed one or more of his EEO
complaints for failure to state a claim, this Court may reinstate the claims; it does
not have to invalidate the regulation. Therefore, the Court will dismiss Count 4.
ii.

The Title VII Claim Based on Director Thompson’s Dismissal of
ARREDSTON18APR01146

In Count 5, Mr. Hawthorne alleges that the Army discriminated against him
on the basis of sex in violation of Title VII when Director Thompson dismissed
ARREDSTON18APR01146. (Doc. 73, p. 56, ¶ 215). Based on this alleged conduct,

18

The Army states that Count 4 also concerns ARIMCOMHQ18OCT03864 (Doc. 89, p. 1, n. 2),
but that EEO complaint is not mentioned in Count 4.
37

Mr. Hawthorne filed an EEO complaint with the Army that it designated
ARIMCOMHQ18OCT03864. (Doc. 73, pp. 56–57, ¶ 216).
The Army argues that the Court must dismiss this count because Mr.
Hawthorne:
has not complied with the Court’s standing order on [this] EEO claim[].
Plaintiff has not attached the necessary EEO documents or provided the
notice of the right to sue. It is therefore not clear whether Plaintiff has
exhausted this claim or if the claim is timely raised here. Therefore, the
Court should dismiss Count 5 based on Plaintiff’s failure to comply
with the Court’s order.
(Doc. 83, p. 10). The Eleventh Circuit has stated:
Both federal statutes and EEOC regulations require a federal
employee to exhaust an administrative process before filing a civil
complaint of discrimination in the workplace. An aggrieved federal
employee first must file a formal complaint with the agency that
allegedly discriminated against him. 29 C.F.R. § 1614.106(a). After the
agency has rendered a final decision, the employee has the option to
appeal the decision of the agency to either the federal district court or
the EEOC. 42 U.S.C. § 2000e–16(c). If the employee appeals to the
EEOC and the EEOC does not issue a decision within 180 days, the
employee may file a complaint in the district court. Id.; 29 C.F.R. §
1614.407(d).
Brown v. Snow, 440 F.3d 1259, 1262–63 (11th Cir. 2006) (emphasis added).
In his June 2019 brief in opposition to the Army’s initial motion to dismiss
his amended complaint, Mr. Hawthorne states that he has not received a final agency
decision in ARIMCOMHQ18OCT03864. (Doc. 84, pp. 15–16). He contends that
this was because the Army EEO officers “are just not cooperating,” and “are not
following the law.” (Doc. 84, pp. 15–18, ¶¶ 34–41). A copy of an email in the
38

record indicates that the Army may have issued a final decision on this claim in
October 2019. (Doc. 88, p. 3). That decision does not appear in the record. In his
opposition to the Army’s supplemental motion to dismiss, Mr. Hawthorne states that
the Army dismissed ARIMCOMHQ18OCT03864 “according to Army regulation
AR 690-600 Section 4-4(14)” and “unlawfully . . . under the authority of 29
CFRS1614.107.” (Doc. 94, pp. 12–13). For the purposes of this opinion, the Court
gives Mr. Hawthorne the benefit of the doubt and finds that through his supplemental
submissions, he has sufficiently identified a final administrative decision on this
EEO complaint.
The Army also contends that this Court does not have jurisdiction to hear this
matter under the APA. Under the APA, the Court may review only “final agency
action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The
Army argues Mr. Hawthorne has not identified a final agency action in Count 5. The
Supreme Court has noted:
As a general matter, two conditions must be satisfied for agency action
to be “final”: First, the action must mark the “consummation” of the
agency’s decisionmaking process, it must not be of a merely tentative
or interlocutory nature. And second, the action must be one by which
rights or obligations have been determined, or from which legal
consequences will flow.
Bennett v. Spear, 520 U.S. 154, 177–78 (1997). The Army’s decision dismissing
ARIMCOMHQ18OCT03864 was the both consummation of the agency’s process
and a determination of Mr. Hawthorne’s rights. It therefore was “final.”
39

The Army argues that even if Mr. Hawthorne properly exhausted his
discrimination claim against Director Thompson, the Court should dismiss that
claim because Mr. Hawthorne cannot raise a claim challenge the process of handling
another EEO complaint. In support of its argument, the Army cites several decisions
from other courts including Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002)
(EEOC’s dismissal of an underlying charge of discrimination not reviewable under
the APA), Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979) (EEOC’s failure to make
a reasonable cause determination for more than two years after the filing of the
original charge is not actionable under the APA); and Georator v. EEOC, 592 F.2d
765 (4th Cir. 1979) (EEOC’s determination of reasonable cause on underlying
charge of discrimination is not reviewable under the APA). In each decision, the
plaintiff challenged the administrative process. Here, Mr. Hawthorne challenges
Director Thompson’s intent, arguing that discriminated against him in her handling
of the underlying case. The cases on which the Army relies do not require dismissal
of Mr. Hawthorne’s Title VII claim pursuant to the APA. Therefore, the Court will
deny the Army’s motion as it relates to Count 5.
iii.

Claims Based on Article 13(a) of the Collective Bargaining Agreement
Between the Army and Local 1858

Article 13(a) of the Collective Bargaining Agreement between the Army and
Local 1858 reads:

“The Employer and the Union will conduct a continuing

campaign to eradicate every form of prejudice or discrimination based upon race,
40

color, religion, age, sex (gender), physical or mental handicap, sexual harassment,
national origin, or reprisal.” (Doc. 73-2, p. 23). In Count 8, Mr. Hawthorne alleges
that “pursuant to Article 13(a) . . . the Army breached its duty of care when it did
not protect [Mr. Hawthorne]” from Mr. Merriweather’s alleged harassment and
retaliation. (Doc. 73, p. 59, ¶ 223). Mr. Hawthorne also contends that the Army is
liable under Title VII for discrimination based on sex, sexual harassment, creating a
hostile work environment, and retaliation because of Mr. Merriweather’s conduct.
(Doc. 73, p. 59, ¶ 223 (referencing “Title VII”); Doc. 73, p. 60, ¶ 235 (citing 42
U.S.C. § 2000e-2, et seq.).
The Army argues that sovereign immunity bars Count 8 to the extent that the
count is based on Article 13(a) and the allegation that the Army “breached its duty
of care.” Under the principle of sovereign immunity, the United States “is immune
from suit save as it consents to be sued . . . and the terms of its consent to be sued in
any court define that court’s jurisdiction to entertain the suit.” United States v.
Testan, 424 U.S. 392, 399 (1976) (internal quotations and citations omitted).
“Absent 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). “Jurisdiction
over any suit against the Government requires a clear statement from the United
States waiving sovereign immunity, together with a claim falling within the terms of
the waiver. The terms of consent to be sued may not be inferred, but must be
41

unequivocally expressed.” United States v. White Mountain Apache Tribe, 537 U.S.
465, 472 (2003) (internal quotations and citations omitted). Mr. Hawthorne does not
argue that the United States has waived sovereign immunity for a claim based on
breach of a collective bargaining agreement, and the Court is not aware of authority
establishing waiver.19 Accordingly, to the extent that Count 8 sets out a claim
against the Army pursuant to Article 13(a), the Court will dismiss the claim.
The Title VII claim in Count 8 is another matter. The Army argues that Mr.
Hawthorne has not exhausted the administrative prerequisites to filing the Title VII
claim in Count 8. In his brief, Mr. Hawthorne states that the basis for the claims in
Count 8 is Mr. Merriweather’s conduct. (Doc. 84, p. 33, ¶ 83). Mr. Hawthorne set
out that conduct in his May 2017 EEO complaint, ARREDSTON17MAY01829.
The Army assumed in its brief that Mr. Hawthorne had abandoned his claims
based on ARREDSTON17MAY01829. Still, the Army stated:
Plaintiff’s merits challenges likewise fail. Actions taken by a union
representative do not state a claim of harassment for which the Army is
responsible and therefore the EEOC correctly concluded that he had not
stated a claim for relief. In addition, even if the claims against the union
president could go forward, the EEOC correctly dismissed them on
the basis that the alleged conduct is not sufficiently severe or
pervasive to state a claim for a hostile work environment. Accordingly,
the case should be dismissed consistent with Rule 12(b)(6).

19

Mr. Hawthorne argues that the APA waives sovereign immunity and/or that sovereign immunity
does not apply in APA cases. (Doc. 84, pp. 13–14, 24–27, 37–38, ¶¶ 30–33, 60–69, 96–100). The
claim under Article 13(a) is not an APA claim.
42

(Doc. 83, p. 6). The Army also adopted by incorporation the arguments it made for
dismissal of this claim in its previous motions, “to the extent [the Army] is
misreading the [amended] complaint. (Doc. 83, p. 10, n. 1).20
The

Court

has

considered

the

factual

allegations

in

ARREDSTON17MAY01829 and the factual allegations that Mr. Hawthorne asked
the Army EEO office, in his email of June 19, 2017, to add to his EEO complaint.
For several reasons, those factual allegations do not support a Title VII claim against
the Army concerning Mr. Merriweather’s alleged conduct.
First, the Army does not control and is not responsible for conduct by union
members in the performance of their union duties or by the union itself.
Second, Mr. Hawthorne has not alleged an adverse employment action
resulting from Mr. Merriweather’s conduct to support a discrimination claim. As
the Eleventh Circuit has explained:
Sexual harassment can constitute discrimination based on sex for
purposes of Title VII. See Mendoza v. Borden, Inc., 195 F.3d 1238,
1244–45 (11th Cir.1999) (en banc). Generally, sexual harassment
comes in two forms: harassment that does not result in a tangible
employment action (traditionally referred to as “hostile work
environment” harassment), and harassment that does result in a tangible
employment action (traditionally referred to as “quid pro quo”
harassment). See generally Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 760–63, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
The Army moved to dismiss earlier versions of Mr. Hawthorne’s complaint, and the Army asked
the Court to dismiss those complaints in Doc. 29 and Doc. 54. Mr. Hawthorne filed responses to
each motion. (Docs. 34, 59). Because Mr. Hawthorne had an opportunity to respond, the Court
will consider the Army’s incorporated arguments.
20

43

Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507–08 (11th
Cir. 2000). Mr. Hawthorne does not allege that Mr. Merriweather or the Army
engaged in quid pro quo harassment, as the amended complaint alleges no tangible
employment action that the Army or an agent of the Army took against Mr.
Hawthorne. 21
Third, Mr. Hawthorne has not alleged facts to support a hostile work
environment claim. A hostile work environment exists when “the workplace is
permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an
abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993);
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The
severity requirement:
contains both an objective and a subjective component. See Harris, 510
U.S. at 21–22, 114 S.Ct. 367, 370–71, 126 L.Ed.2d 295. Thus, to be
actionable, this behavior must result in both an environment “that a
reasonable person would find hostile or abusive” and an environment
that the victim “subjectively perceive[s] ... to be abusive.”
Miller, 277 F.3d at 1276 (quoting Harris, 510 U.S. at 21–22). To evaluate the
objective severity of the alleged harassment, a district court considers, among other

21

Mr. Hawthorne alleges that Mr. Merriweather, as union president, stripped Mr. Hawthorne of
the position of vice president in retaliation for the filing of an EEO complaint against him. That
is not an employment action by the Army or by an agent of the Army.
44

things: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether
the conduct is physically threatening or humiliating, or a mere offensive utterance;
and (4) whether the conduct unreasonably interferes with the employee’s job
performance. Miller, 277 F.3d at 1276 (citing Allen v. Tyson Foods, 121 F.3d 642,
647 (11th Cir. 1997) (in turn citing Harris, 510 U.S. at 23)).
Mr. Merriweather’s alleged conduct occurred outside of the workplace, and
Mr. Hawthorne has not alleged that the conduct affected him at work. To be sure,
the efforts of union leaders affect the workplace, so interactions between union
leaders may not be entirely unrelated to the workplace. But in this case, Mr.
Hawthorne and Mr. Merriweather work in completely different departments of the
Army, and their only alleged connection is their membership in Local 1858. Alleged
harassing conduct on Mr. Merriweather’s part outside of the Redstone Arsenal
would not follow Mr. Hawthorne into the workplace and impact Mr. Hawthorne’s
relationship with the Army.
The retaliation claim in Count 8 based on the EEO complaint filed in
ARREDSTON17MAY01829 also fails.
Title VII’s antiretaliation provision forbids employer actions that
“discriminate against” an employee (or job applicant) because he has
“opposed” a practice that Title VII forbids or has “made a charge,
testified, assisted, or participated in” a Title VII “investigation,
proceeding, or hearing.” § 2000e–3(a).

45

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006).

Mr.

Hawthorne’s retaliation claim is based on Mr. Merriweather’s removal of Mr.
Hawthorne from Mr. Hawthorne’s union position. As noted above, because Mr.
Merriweather took that action as a member of the union, not as an employee of the
Army, the retaliation claim against the Army fails.
Thus, the Court will dismiss Count 8.
E. Claims Against Local 1858, District 5, and the National Union
i.

Title VII Claims Against Local 1858

In Count 6, Mr. Hawthorne alleges that Local 1858 is liable for sexual
harassment under Title VII based on Mr. Merriweather’s conduct. (Doc. 73, p. 58,
¶ 220; Doc. 80, p. 8, ¶¶ 21–22 (“This claim is based on 42 U.S.C. §2000e-2(a), et
seq.”)). The Court will dismiss Count 6 because Mr. Hawthorne did not exhaust his
administrative remedies with respect to the union defendants.
“Before a potential plaintiff may sue for discrimination under Title VII, [he]
must first exhaust [his] administrative remedies. The first step down this path is
filing a timely charge of discrimination with the EEOC.” Wilkerson v. Grinnell
Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (citations omitted); 42 U.S.C. § 2000e–
5(b). A charge must be “in writing under oath or affirmation” and must “contain
such information and be in such form as the Commission requires.” 42 U.S.C. §
2000e-5(b). A charge allows the EEOC to investigate the charge with an employer
46

and attempt to resolve the charge short of litigation. Mr. Hawthorne filed several
EEO charges with the Army, but he has not identified a charge against Local 1858.
The Supreme Court has held that Title VII's charge-filing requirement is
“mandatory.” Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843, 1851 (2019).
Because Mr. Hawthorne did not file a charge with the EEOC naming Local 1858,
the Court must dismiss Count 6.
ii.

Claims Based on Article 13(a) of the Collective Bargaining Agreement
between the Army and Local 1858

In Count 9, Mr. Hawthorne alleges that District 5 and Everett Kelley
“breached their duty of care” under Article 13(a) of the Collective Bargaining
Agreement between the Army and Local 1858 when Mr. Kelley wrote his email of
June 27, 2017, in which he stated that Mr. Merriweather’s conduct did not rise to the
level of sexual harassment, and “there is nothing for any of us to do at this time.”
(Doc. 73-5, pp. 17–18; Doc. 73, p. 60, ¶ 236). Mr. Hawthorne contends that District
5 “should have initiated an investigation to comply with Article 13(a).” (Doc. 73, p.
60, ¶236). He also asserts that “the 5th District . . . interfered with . . . . Local 1858
Adhering to Article 13(a) and investigating.” (Doc. 73, p. 60, ¶ 236). In Count 11,
Mr. Hawthorne alleges that the national union and Mr. Cox “breach[ed] [their] duty
of care” under Article 13(a) “when [their] attorneys, according to Everett Kelley . .
. advised [Mr. Kelley] that they should do nothing because [the] claim of sexual
harassment did not rise to unlawful [s]exual [h]arassment.” (Doc. 73, p. 61, ¶¶23947

239). In Count 7, Mr. Hawthorne alleges that the local union “breached its duty of
care [under Article 13(a)] when it did not protect [Mr. Hawthorne]” from Mr.
Merriweather’s alleged harassment and retaliation. (Doc. 73, pp. 58–59, ¶¶ 221–
222; Doc. 73-1, pp. 13 and 1–109 generally). In Count 10, Mr. Hawthorne alleges
that the local union “breached its duty of care” pursuant to Article 13(a) when, “after
being made aware of the sexual harassment complaint and the retaliation,” the local
union did not initiate an investigation. (Doc. 73, p. 61, ¶ 237). Thus, each of these
theories of actionable conduct are tethered to Article 13(a).
The Court will dismiss these claims because to the extent that Article 13(a) of
the collective bargaining agreement between Local 1858 and the Army gives rise to
an enforceable duty, it is a duty that Mr. Hawthorne must pursue through the
collective bargaining dispute resolution process. “Title VII of the Civil Service
Reform Act (“CSRA”) explicitly governs labor-management relations in the federal
sector.” Warren v. Local 1759, Am. Fed’n of Gov’t Employees, 764 F.2d 1395, 1396
(11th Cir. 1985) (citing 5 U.S.C. § 7101 et seq.). Under the CSRA, Local 1858,
District 5, and the national union have a duty of fair representation and must
“represent[] the interests of all employees in the unit . . . without discrimination.” 5
U.S.C. § 7114(a)(1). “[A] breach of the duty of fair representation is an unfair labor
practice.” Karahalios v. Nat’l Fed’n of Fed. Employees, Local 1263, 489 U.S. 527,

48

532 (1989) (citing 5 U.S.C. § 7116(b)(8)). The CSRA states that “unfair labor
practices” include, among other things, acts
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
(2) to cause or attempt to cause an agency to discriminate against any
employee in the exercise by the employee of any right under this
chapter; [and]
(4) to discriminate against an employee with regard to the terms or
conditions of membership in the labor organization on the basis of race,
color, creed, national origin, sex, age, preferential or nonpreferential
civil service status, political affiliation, marital status, or handicapping
condition[.]
5 U.S.C. §7116(b)(1–2, 4).
The CSRA confers exclusive jurisdiction over unfair labor practice
complaints on the Federal Labor Relations Authority. 5 U.S.C. § 7118; Karahalios,
489 U.S. at 532 (“Under § 7118, unfair labor practice complaints are adjudicated by
the FLRA[.]”); Warren, 764 F.2d at 1399. Judicial review of a decision of the FLRA
lies with a federal circuit court of appeals. 5 U.S.C. § 7123(a). Federal district courts
lack subject matter jurisdiction to hear duty of fair representation/unfair labor
practices cases. And the CSRA preempts federal causes of action resulting from
unfair labor practices. Karahalios, 489 U.S. at 537.
Because the “duties” Mr. Hawthorne ascribes to the union defendants fall
squarely within the categories of unfair labor practices set out above, the CSRA
preempts his claims based on Article 13(a). If he wishes to pursue those claims, Mr.
49

Hawthorne must do so before the Fair Labor Relations Authority. Accordingly, this
Court will dismiss the Article 13(a) claims against the union defendants.
IV.

CONCLUSION
For the reasons discussed above, the Court denies the Army’s motion to

dismiss and supplemental motion to dismiss, (Docs. 83, 89), as to Count 5. In all
other respects, the Court grants those motions and dismisses the remaining counts
(Counts 1–4, 8) with prejudice.
The Court grants the union defendants motion to dismiss, (Doc. 79), in its
entirety. The following claims are dismissed with prejudice: all claims based on the
violation of 18 U.S.C. §§ 1001 and 1505; all claims against the individual
defendants; and all claims in Count 6. The Court dismisses without prejudice the
remaining claims against Local 1858, District 5, and the national union so that Mr.
Hawthorne may pursue those claims in a proper forum if he wishes. (Counts 7, 9,
10–11).
The recent General Orders Regarding Court Operations During the Public
Health Emergency Caused by the COVID-19 Virus, (N.D. Ala. Mar. 17, 2020 and
April 13, 2020), do not affect the deadline to challenge a final order or judgment on
appeal.

See

https://www.alnd.uscourts.gov/general-order-regarding-court-

operations-during-public-health-emergency-caused-covid-19-virus, p. 2, ¶ 7. The
parties are reminded that under Rule 4(a)(5) of the Federal Rules of Appellate
50

Procedure, a party may request an extension of time for a notice of appeal. In
addition, pursuant to Rule 4(a)(6), a party may ask a district court to reopen the time
to file a notice of appeal for 14 days. Parties are advised to study these rules carefully
if circumstances created by the COVID-19 Public Health Emergency require
motions under FRAP 4(a)(5) or 4(a)(6).
DONE and ORDERED this May 29, 2020.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

51