Armstrong v. Sessions et al

Filing 20

MEMORANDUM OPINION AND ORDER - For the reasons stated above, Defendant's Motion (doc. 12) is granted in part and denied in part, claims arising out of the 2015 Complaint based upon race are dismissed, while those arising out of the 2017 EEO Complaint based upon race may proceed. Plaintiff's Motion to Deny Defendant's Partial Motion to Dismiss Amended Complaint (doc. 15) is denied. Signed by Judge L Scott Coogler on 7/9/2018. (KEK)

FILED
2018 Jul-09 PM 12:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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RESHAWN ARMSTRONG,
Pro se Plaintiff,
vs.
JEFFERSON B. SESSIONS,
Attorney General,
Defendant.

7:17-cv-1857-LSC

MEMORANDUM OF OPINION AND ORDER
Plaintiff, Reshawn Armstrong

Plaintiff

) brings the

instant action against U.S. Attorney General, Jefferson B. Sessions

Defendant

alleging race and sex discrimination, failure to promote, unequal terms of
employment, retaliation, harassment, and hostile work environment under Title
VII of the Civil Rights Act of 1964

, 42 U.S.C. §§ 1981a, 2000e

2000e-17, and 29 C.F.R. § 1614, et seq. Before the Court is
partially dismiss

motion to

. (Doc. 12.) The motion is now ripe

for review. For the reasons stated below,
granted in part and denied in part.

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motion (doc. 12) is due to be

I.

BACKGROUND1
Plaintiff has been a Federal Bureau of Prisons employee since 2007. She

began work FCI Aliceville, in Pickens County, Alabama in August of 2012 and
currently serves as a Senior Officer Specialist. She received positive performance
evaluations, was the recipient of two incentive awards for her job performance, and
no disciplinary action was taken against her in 2015 or 2016.
Between March 2015 and January 2017, a number of events occurred which
Armstrong claims subjected her to discrimination. In response to the alleged
discrimination, she filed two formal EEO Complaints with subsequent
amendments, as well as reports with the Federal Bureau of Prisons and the
management at FCI Aliceville. In 2015, Plaintiff submitted applications in response
to various job announcements for promotion at institutions within the Department
of Justice. She represents that she did not receive a promotion, and further that
several of her reference checks between March 2015 and August 2015 were
negative, false or misleading

allegedly due to her sex and race.

co-workers, Randolph King, a white male, was selected for one of the same
positions Armstrong had applied for.
1

Johnson v. Midland
Funding, LLC, 823 F.3d 1334, 1337 (11th Cir. 2016). The following facts are, therefore, taken
the Complaint, and the Court makes no ruling on their
veracity.
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On August 21, 2015, Plaintiff first contacted her Equal Employment
Opportunity Commission

EEO

Counselor, Zelford Thomas

,

about drafting an EEO Complaint. Armstrong filed her informal EEO Complaint
on September 11, 2015. On December 1, 2015, Plaintiff filed her first official EEO
Complaint, alleging discrimination based on sex and retaliation for non-promotion.
The conduct she listed which began in February 2015, included false reference
checks, harassment by other staff members while performing her duties, failure to
respond to her complaints, non-payment of overtime, scheduling her EEO
mediation on her day off, as well as other issues surrounding scheduling and leave
which occurred through November of 2015.
On January 14, 2016, Plaintiff requested to amend her formal EEO
Complaint to add two additional incidents evidencing discrimination. (See Doc. 82 at 1-3.) The two acts she added had to do with overtime for her mediation date in
November 2015 and requests for official time to work on her EEO complaint in
January 2016. She attempted to amend her complaint again in July 2016 to include
race discrimination as a basis for her claims. However, her motions were denied by
EEOC Administrative Judge Bryan M. Douglas
because Armstrong
from the Order regarding the hearing process was issued, after discovery had
Page 3 of 14

closed, after the Agency filed a motion to dismiss, and after the Agency filed a
(Doc. 16-1 at 1.) On November 28, 2017,
the EEOC dismissed the 2015 Complaint pursuant to 29 C.F.R. §1614.107(a)(3) 2
because the allegations were the subject of a pending lawsuit, and it had been more
than 180 days since the Complaint was filed.
Plaintiff filed a second formal EEO Complaint on September 18, 2017, in
which she alleged that the harassment, hostile work environment and retaliation
had persisted through August 2017 listing race, sex, sexual orientation, and reprisal
as bases for discrimination. (Doc. 12-1 at 2.) The 2017 EEOC Complaint was
based upon a number of incidents.

One occurred in February 2016, when

Lieutenant Tommy Simmons, allowed the prison control center to release
unescorted vehicles from the facility, which Plaintiff alleges could have jeopardized
her safety given her post at the rear gate. In response, Armstrong wrote memos
voicing her security concerns which went unanswered. Another instance was when
Lieutenant Hebb called Plaintiff at her home and allegedly harassed her for not

2

29 C.F.R. §1614.107(a)(3) states:
(a) Prior to a request for a hearing in a case, the agency shall dismiss an entire
complaint: . . . (3) That is the basis of a pending civil action in a United States
District Court in which the complainant is a party provided that at least 180 days
have passed since the filing of the administrative complaint, or that was the basis
of a civil action decided by a United States District Court in which the
complainant was a party.
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showing up to work on her day off. A third involved the heating, ventilation, and
air conditioning technician, Rusty Adams

, harassing Plaintiff by

continually changing thermostat temperature at her post. In response, Plaintiff
sent a memo to the Warden, and

sent a letter to Captain Troy

Gentry; both were ignored.
Between March 2016 and November 2016, Management failed to pay
Plaintiff on three separate occasions for time she had worked, twice inputted her
into the overtime roster program so that she would drop to the bottom of the list for
available overtime shifts, and bypassed her for overtime shifts two times. Plaintiff
sent numerous memos and emails to Management, the Warden, and Captain
Chandra Nelson
ignored.

concerning these actions, all of which were

In addition to the continued harassment from Adams about the air

conditioning, Plaintiff took offense to a number of Captain Nelson

statements

;
;

; and

Plaintiff continues to work at FCI Aliceville.
II.

STANDARDS OF REVIEW
administrative remedies before filing a civil complaint for

discrimination is required by 29 C.F.R. § 1614.407 and 42 U.S.C. § 2000e-16(c),
Page 5 of 14

and the Eleventh Circuit has held that courts have subject matter jurisdiction over
Title VII claims only if the plaintiff
administrative rem

exhauste[d] [those]

Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999).

That is, a plaintiff must have
regulations and, particularly, to provide all the relevant, specific information
available.

Wade v. Sec y of the Army, 796 F.2d 1369, 1376 (11th Cir. 1986).

Dismissal for failure to exhaust remedies should be raised in a motion to dismiss.
, 507 Fed. Appx. 873, 874 (11th Cir. 2013) (per curiam). In
order to survive a motion to dismiss on grounds of failure to exhaust administrative
remedies, the Court must find that Plaintiff made a good-faith effort to comply with
the EEOC procedural requirements and allowed the EEOC an opportunity to
investigate the merits of her claims. Id.

Fed. R. Civ. P. 8(a)(2). However, in
order to withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a

Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347 48 (11th Cir. 2016) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks
omitted).
Page 6 of 14

that allows the court to draw the reasonable inference that the defendant is liable
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated

Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010).

intiff pleads

factual content that allows the court to draw the reasonable inference that the
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Pleadings asserting legal conclusions rather than mere facts are not entitled
to the assumption of truth. Id. at 679. However, factual allegations on the face of
the complaint are taken as the truth and then determined whether they plausibly
Id. A pleading satisfies the notice pleading
standard i

enough information regarding the material

theory.

, 637 F.3d

1178, 1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253
F.3d 678, 683 84 (11th Cir. 2001)).
The review of a motion to dismiss is limited in scope to the face of the
complaint.

St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002).

However,

n to dismiss may be considered
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if the plaintiff refers to the document in the complaint, the document is central to
the authenticity of the document is not in dispute.3 Fin.
Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007).
III.

DISCUSSION

A. Race Discrimination
In his motion, Defendant first argues that

should be

partially dismissed with respect to all claims of discrimination based on race
because of her failure to exhaust administrative remedies prior to filing suit; and
because Plaintiff did not mention race discrimination in her 2015 EEO Complaint,4
nor did she raise it during the administrative investigation.

Plaintiff raised

allegations of race discrimination in her 2017 EEO Complaint.
reply (doc. 16), he altered his request concerning allegations of race discrimination.
Rather than moving to dismiss all allegations of race discrimination, Defendant

3

formal 2015 EEO charge (doc. 8-1), her informal 2015
EEO charge (doc. 8-3), her January 2016 amendment (doc. 8-2) as well as her 2017 EEO charge
(doc. 12-1). All are central to her claim and their authenticity is not in dispute. See also Lambert v.
Ala. Dept. of Youth Servs., 150 Fed. Appx. 990, 991- 992 (11th Cir. 2005) (an EEOC charge is
central to the complaint and a court may properly consider it on a motion to dismiss).
4

here at Aliceville? We need more female staff with this being a female i
& Doc. 8-2 at 2.)
Page 8 of 14

-1 at 5

requests that
be dismissed. (Doc. 16 at 3-4.)
The Eleventh Circuit has held that a judicial complaint is limited by claims
that are like or related to, or grew out of, the administrative allegations

Basel,

507 Fed. Appx. at 876; see also Gregory v. Georgia Dept. of Human Resources, 355
F.3d 1277, 1280 (11th Cir. 2004) (per curiam) (retaliation claim was not
administratively barred because it was intertwined with other discrimination
claims). This Circuit has also
amplify,

noted that judicial claims are allowed if they
the allegations in the EEOC complaint, but

has cautioned that allegations of new acts of discrimination are inappropriate.
Gregory, 355 F.3d at 1279-80 (citing Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.
1989)). Allegations of race discrimination would not reasonably arise out of an
investigation into claims of discrimination based on sex. See, e.g., Penaloza v.
Target Corp., 8

(per curiam) (finding claim of

disability discrimination had not been exhausted and was properly dismissed
because claim did not grow out of claims of sex and pregnancy discrimination).
Armstrong filed her 2015 EEO Complaint in December of 2015 and amended
in January of 2016. It was on March 22, 2016 that Plaintiff first met with an EEO
investigator, and the EEOC concluded its investigation on July 10, 2016. In the
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interim, Plaintiff had nearly four months in which to amend her EEO Complaint to
add race as a basis for the discrimination after finding out she could include race as
a basis; she did not do so until her attempt to amend on July 26, 2016
after the investigation concluded.

sixteen days

On August 2, 2017, the EEOC AJ denied

s to amend her 2015 Complaint because the motion

included

events that predate[d] and were contemporaneous with the investigation that
concluded on July 10, 2016

-1 at 1.)

When a claim of a discrete act of discrimination is added after an original
complaint was filed, that claim is not properly before the Court. See Basel, 507 Fed.
Appx. at 877. While allegations of harassment, hostile work environment, and
retaliation are present on both EEO Complaints, each consists of different discrete
acts.

Plaintiff never raised race discrimination when speaking with the EEO

counselor in 2015, filing her 2015 complaint or amendments to it, or during the
administrative investigation of her 2015 complaint. Therefore, any claim for racial
discrimination that Armstrong asserts in her judicial complaint which she attempts
to base upon allegations her 2015 Complaint is barred. Armstrong did assert race
as a basis for her 2017 complaint. However, because any claim
complaint based on race discrimination arising out of the 2015 EEO Complaint is
separate and discrete from, and does not grow out of the claims in the 2017 EEO
Page 10 of 14

complaint, the race discrimination claims arising out of the 2015 Complaint are due
to be dismissed as not administratively exhausted.
In her opposition (doc. 13), Armstrong makes an equitable tolling argument
by asserting that she did not originally include race as a basis of the discriminatory
acts on account of her lawyer telling her that she could not do so, given that
Plaintiff and the person she was accusing of discrimination were the same race. (Id.
at 2-3.) After participating in ADR, Plaintiff dismissed her attorney and decided to
proceed unrepresented to the stage of formal administrative process. Id. She
argues that she was made aware she could include race as a basis for her EEO
complaint only after she was interviewed by the EEO investigator during the
administrative process. Nonetheless, because Armstrong had an attorney when she

rights, and also possessed constructive knowledge of the law at that
time. See Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F. 2d 1195, 1200
n. 8 (5th Cir. 1975).

equitable tolling may permit consideration of an

untimely filing . . . it does not apply to relieve the plaintiff of his responsibility to
exhaust, or even begin, his administrative remedies.
(citing

Basel, 507 Fed. Appx. at 876

y of the Army, 799 F.2d 721, 724 (11th Cir. 1986)). Equitable
t
Page 11 of 14

of Agric.
.
The Court finds no basis for equitable tolling.
The 2015 EEO Complaint was not amended to include allegations of
discrimination based on race and, consequently, the EEOC was not afforded the
opportunity to investigate those allegations. As such, any claim based upon race
arising out of the 2015 EEO Complaint is due to be dismissed from this action.
B. Claims Arising Out of 2017 EEO Complaint
Defendant initially argued that
EEO Complaint were not exhausted because Plaintiff did not wait 180 days after
filing her 2017 EEO Complaint before filing suit. In his reply, Defendant preserved
its failure to exhaust claim, but also acknowledged that

because 180 days have

now passed [since the 2017 Complaint was filed,
claims in her 2017 complaint that are properly before this Court may be
(Doc. 16 at 3.)

Even if Defendant did not concede to the

admissibility of the 2017 Complaint in so far as it violated the requirement that 180
days pass before filing suit, the Eleventh Circuit has held that the premature filing
of a lawsuit, by itself, does not necessarily constitute a failure to exhaust
administrative remedies. See Brown v. Snow, 440 F.3d 1259, 1264 (11th Cir. 2006)
Page 12 of 14

ing

and therefore the district court properly refused to dismiss his complaint for failure
to exhaust his administrative remedies). As such, the Court finds that timeliness is
not sufficient grounds for dismissing the allegations raised in the 2017 Complaint
and claims predicated upon those allegations may proceed.
C. Claims brought under 29 C.F.R. 1614 et seq.
Defendant argues that

§ 1614, et seq.

should be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6)
because the Federal Sector Equal Employment Opportunity regulations do not
While 29 C.F.R.
§1614.103(a) states that § 1614 covers individual complaints of employment
discrimination prohibited by Title VII, that regulation concerns only the bases for
which EEOC complaints can be made, not those bases actionable in a civil
complaint brought in federal district court. Furthermore, the U.S. Supreme Court
has held that Title VII provides the exclusive, preemptive judicial remedy available
for federal employment discrimination. Brown v. G.S.A., 425 U.S. 820, 821 (1976)
(holding that a

s discrimination claim under 42 U.S.C. § 1981

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warranted dismissal because Title VII provides the exclusive remedy for such
claims).
To the extent that Plaintiff s Complaint can be construed to contain
collateral attacks on the EEOC process, those claims are not actionable in U.S.
District Court because they would be tantamount to

a dissatisfaction with the

processing of a previously filed EEOC complaint.

Federal Sector Equal

Employment Opportunity Rule, 29 C.F.R. § 1614.107(a)(8) (2012). Because

recover, any discrimination claims Armstrong attempts to assert under 29 C.F.R.
§1614, et seq. are due to be dismissed.
IV.

CONCLUSION

For the reasons stated above,

Motion (doc. 12) is granted in

part and denied in part, claims arising out of the 2015 Complaint based upon race
are dismissed, while those arising out of the 2017 EEO Complaint based upon race
may proceed.
Amended Complaint (doc. 15) is denied.
DONE and ORDERED on July 9, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190685

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