LEE v. MCHUGH

Filing 14

ORDER granting 9 Motion to Dismiss; denying 11 Motion to Amend/Correct. Ordered by US DISTRICT JUDGE CLAY D LAND on 07/22/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
LINDA LEE,

*

Plaintiff,

*

vs.

*

ERIC FANNING, Secretary,
Department of the Army,

*

CASE NO. 4:15-CV-194 (CDL)
*
Defendant.
*
O R D E R
Plaintiff Linda Lee was employed by the U.S. Department of
the Army as a human resources assistant.
suffered

from

a

disability,

and

she

Lee asserts that she

alleges

that

the

Army

discriminated against her based on her disability and her race.
Lee also contends that the Army retaliated against her when she
asked

for

accommodations

for

her

disability.

Lee

brought

disability discrimination and retaliation claims under Title I
of the Americans with Disabilities Act, 42 U.S.C. § 12111, et
seq.

She

brought

race

discrimination

42 U.S.C. § 1981 and 42 U.S.C. § 1983.

claims

under

The Army filed a motion

to dismiss, and Lee filed a motion to amend her Complaint.

For

the reasons set forth below, the motion to dismiss (ECF No. 9)
is granted, and the motion to amend (ECF No. 11) is denied as
futile.

DISCUSSION
I.

Lee’s ADA and § 1981 Claims
“Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.”

Dep't of Army v. Blue

Fox, Inc., 525 U.S. 255, 260 (1999) (quoting FDIC v. Meyer, 510
U.S. 471, 475 (1994)).

If sovereign immunity applies, the Court

lacks “jurisdiction to entertain the suit.”
475

(quoting

(1941)).

United

States

v.

Sherwood,

Meyer, 510 U.S. at
312

U.S.

584,

586

Thus, because Lee “is suing the Army, she bears the

burden of establishing that the federal government has waived
its sovereign immunity with respect to her claim[s].”
v. McHugh, 388 F. App’x 870, 872 (11th Cir. 2010).

Thompson
Waiver of

sovereign immunity “cannot be implied but must be unequivocally
expressed.”

United States v. King, 395 U.S. 1, 4, (1969).

First,
immunity
(“ADA”).

the

in

United

Title

The

ADA

“covered entity.”

I

of

States
the

prohibits

did

not

Americans
disability

42 U.S.C. § 12112(a).

waive
with

its

sovereign

Disabilities

discrimination

Act

by

a

A “covered entity” is

“an employer, employment agency, labor organization, or joint
labor-management

committee.”

42

U.S.C. § 12111(2).

But

the

United States is expressly excluded from the term “employer.”
42 U.S.C. § 12111(5)(B)(i).

Thus, Congress chose not to submit

the United States to suit under Title I of the ADA, and the Army
is therefore entitled to sovereign immunity on Lee’s ADA claims.

2

Second,

the

United

States

immunity in 42 U.S.C. § 1981.
enforce

contracts

nongovernmental
State law.”

is

did

not

waive

its

sovereign

Section 1981’s right to make and

“protected

discrimination

and

42 U.S.C. § 1981(c).

against
impairment

impairment
under

by

color

of

Nothing in the statute itself

establishes that the United States may be sued under § 1981.
Furthermore, “[i]t is well established in [the Eleventh Circuit]
that the United States has not waived its immunity to suit under
the provisions of the civil rights statutes,” including § 1981.
United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982).
Section

1983

does

not

help

Lee’s

cause

because

§ 1983

only

provides “a remedy for deprivation of rights under color of
state law.”

Carman v. Parsons, 789 F.2d 1532, 1534 (11th Cir.

1986) (per curiam) (quoting Mack v. Alexander, 575 F.2d 488, 489
(5th

Cir.

1978).

Section

1983

“does

not

apply

defendants are acting under color of federal law.”
Mack, 575 F.2d at 489).

when

the

Id. (quoting

For these reasons, the Army is entitled

to sovereign immunity on Lee’s § 1981/§ 1983 claims.
Lee contends that she should be permitted discovery “to
determine the substantive weight of Defendants’ arguments as it
relates to sovereign immunity.”
Dismiss 3, ECF No. 12.

Pl.’s Resp. to Def.’s Mot. to

But no amount of discovery will help Lee

on this point because even if all of the facts she alleges in
her

Complaint

are

taken

as

true,

3

she

cannot

state

a

claim

against the Army under the ADA, § 1981, or § 1983.

In sum, the

Court does not have jurisdiction over Lee’s ADA, § 1981, and
§ 1983

claims

because

the

United

States

has

not

waived

its

sovereign immunity as to those claims.
II.

Lee’s Title VII Claim
Lee

invoked

Title

VII

of

the

Civil

Rights

Act

of

1964

(“Title VII”), 42 U.S.C. § 2000e, et seq., as a jurisdictional
basis for her claims.
claims

for

relief

Lee did not reference Title VII in the

section

of

her

Amended

Complaint

or

her

proposed Amended Complaint, but she does summarily allege that
the

Army

denied

her

“employment

opportunities

national origin, ethnicity, and race.”
3.

based

on

her

Am. Compl. ¶ 52, ECF No.

Title VII prohibits discrimination motivated by race, color,

or national origin, and

Title VII is the exclusive judicial

remedy

employee

for

a

federal

discrimination.

complaining

of

employment

See Brown v. Gen. Servs. Admin., 425 U.S. 820,

835, (1976) (finding that Ҥ 717 of the Civil Rights Act of
1964, as amended, provides the exclusive judicial remedy for
claims

of

discrimination

in

federal

employment”);

accord

42

U.S.C. § 2000e-16(a) (stating that personnel actions for federal
employees “shall be made free from any discrimination based on
race,

color,

although

religion,

Lee’s

sex,

Complaint,

or

national

Amended

origin”).

Complaint,

and

Thus,
proposed

Amended Complaint are sloppily drafted and do not explicitly

4

state a claim under Title VII, the Court finds that the Amended
Complaint, taken as a whole, can be interpreted as attempting to
assert a race discrimination claim under Title VII.
Lee did not, however, allege any facts to explain what
employment opportunities she was denied or that any denial was
motivated by her race.

Based on the Court’s review of Lee’s

Amended Complaint (and proposed Amended Complaint), Lee did not
allege

any

facts

to

suggest

that

she

employment action based on her race.

suffered

an

adverse

But the Army did not seek

dismissal on that ground, so the Court declines to dismiss this
action based

on Lee’s failure to

allege sufficient facts to

support her race discrimination claim.

The Court nonetheless

finds that Lee’s action must be dismissed for failure to exhaust
administrative remedies.
The Army argues that if Lee’s Complaint is construed to
assert a Title VII claim, that claim fails because Lee did not
timely exhaust her administrative remedies.

A federal employee

with a Title VII claim “is required to pursue and exhaust her
administrative

remedies

as

a

prerequisite

to

filing

suit.”

Duberry v. Postmaster Gen., No. 15-13441, 2016 WL 3182668, at *1
(11th

Cir.

June

8,

2016)

(per

curiam).

Failure

administrative remedies is grounds for dismissal.

to

exhaust

Id. at *2.

A federal employee asserting claims of discrimination must
first

file

a

complaint

with

5

the

agency

that

allegedly

discriminated against her.

After the agency issues a final

decision,

appeal

the

employee

may

to

the

Equal

Opportunity Commission. 29 C.F.R. § 1614.401(a).

Employment

Such an appeal

“must be filed within 30 days of receipt of the” final decision.
29 C.F.R. § 1614.402(a).

If the employee timely appeals to the

EEOC, the employee may file a civil action in a U.S. District
Court “[a]fter 180 days from the date of filing an appeal with
the [EEOC] if there has been no final decision by the [EEOC]. 29
C.F.R. § 1614.407(d).

In the alternative, if the employee does

not appeal to the EEOC, she may file a civil action in a U.S.
District

Court

action.”

“[w]ithin

90

days

of

receipt

of

the

final

29 C.F.R. § 1614.407(a); accord 42 U.S.C.A. § 2000e-

16(c).
In her Amended Complaint, Lee summarily alleges that she
“filed

timely

Employment

charges

Opportunity

of

discrimination

Commission”

and

with

“brought

the

Equal

suit

within

ninety (90) days of receipt of the Notice of Right to Sue.”
Compl. ¶ 3.

Am.

Lee acknowledges in her response to the Army’s

motion to dismiss that she did not follow this process; rather,
she asserts that she followed the “Federal Sector EEO Process”
Pl.’s Resp. to Def.’s Mot. to Dismiss 6, ECF No. 12.

Lee did

not submit any evidence to support her argument that she timely
exhausted her administrative remedies.

6

In support of its motion to dismiss, the Army submitted a
copy of the Department of the Army’s final decision and a copy
of Lee’s response to the Army’s final decision.

Lee did not

object to the authenticity of these documents, which are central
to

her

contention

discrimination.

that

she

timely

filed

a

charge

of

The Court will thus consider these documents.

See Urquilla-Diaz v. Kaplan Univ.,

780 F.3d 1039, 1053

n.12

(11th Cir. 2015) (“In ruling on a motion to dismiss, the court
may consider an extrinsic document if (1) it is central to a
claim

in

the

complaint,

and

(2)

its

authenticity

is

unchallenged.”).
The Army’s final agency decision is dated May 29, 2015, and
the certificate of service states that the Army transmitted the
decision

to

Lee

via

certified

Columbus, GA on May 29, 2015.

mail

from

Washington,

DC

to

Def.’s Mot. to Dismiss Ex. 1,

Final Agency Decision (May 29, 2015), ECF No. 9-2 at 1, 26.

Lee

did not point to any evidence on when she received the final
agency decision.

Lee prepared a response to the final agency

decision, and she mailed it via certified mail to the Army’s EEO
Compliance

and

Complaints

Review

Director

on

July

28,

2016,

presumably because the final decision instructed her to send a
copy of her appeal to that address.

Def.’s Mot. to Dismiss Ex.

2, Pl.’s Response to Final Agency Decision (mail date July 28,
2015), ECF No. 9-3. It is not clear from the present record

7

whether Lee also sent her response directly to the EEOC as she
was required to do, but the Court assumes for purposes of the
pending motion that she did so when she sent the Army a copy of
her appeal on July 28, 2015.

Lee filed this action on December

2, 2015.
Once a defendant contests the issue of whether a plaintiff
met

the

conditions

precedent

to

her

Title

VII

action,

the

plaintiff has the burden of establishing that she did meet the
conditions precedent.

Jackson v. Seaboard Coast Line R.R. Co.,

678 F.2d 992, 1010 (11th Cir. 1982).

Here, the Army presented

evidence suggesting that Lee’s Title VII action was untimely.
In response, Lee did not provide any evidence that she filed her
appeal

within

decision.

To

thirty
find

days
that

after

Lee

receiving

timely

filed

the
her

Army’s
appeal

final
within

thirty days after she received the Army’s final decision, the
Court would have to speculate that Lee did not receive the final
decision

until

thirty

days

after

the

Army

mailed

it

via

certified mail from Washington, DC to Columbus, GA on May 29,
2015.1

The Court cannot engage in such speculation, and the

Court finds that Lee has not met her burden of establishing that
she appealed the Army’s final decision within thirty days of
receiving that decision as required by 29 C.F.R. § 1614.402(a).
1

The Court notes that it only took nine days for the Army’s EEO
Compliance and Complaints Review Director to receive a copy of Lee’s
appeal, which was sent via certified mail from Georgia to Virginia.

8

Lee also did not establish that she filed this action within
ninety days of receiving the Army’s final decision as required
by 29 C.F.R. § 1614.407(a).2
III. Lee’s Motion to Amend
Lee argues that the Court should grant her motion to amend
and should consider her proposed Amended Complaint rather than
her Amended Complaint.

Lee further contends that her proposed

Amended Complaint renders the Army’s motion to dismiss moot.
But it does not make a difference which version of the Complaint
the Court considers.

Based on the Court’s review, the proposed

Amended Complaint is different from the Amended Complaint in
just two ways: (1) it is against Patrick Murphy, who served as
acting Secretary of the Army for a short time after John McHugh
retired from the position and before Eric Fanning was confirmed
the

new

Secretary

of

address is updated.
Second

Amended

Complaint.

the

Army;3

and

(2)

the

Army’s

service

Other than these changes, the proposed

Complaint

is

identical

to

the

First

There are no new facts or claims for relief.

2

Amended
There

Even if the Court were to speculate that Lee timely appealed the
Army’s final decision to the EEOC by sending her response on July 28,
2015, she would still have a problem because a civil action cannot be
filed until “[a]fter 180 days from the date of filing an appeal with
the [EEOC] if there has been no final decision by the [EEOC].” 29
C.F.R. § 1614.407(d). Thus, if Lee had filed a timely appeal with the
EEOC on July 28, 2015, she was required to wait until January 25, 2016
to file this action.
3
In her response to the Army’s motion to dismiss, Lee acknowledged
that Fanning is now Secretary of the Army and adjusted the case
caption on her response brief.

9

are

no

new

allegations

regarding

Lee’s

exhaustion

of

administrative remedies.
Thus, under both the Amended Complaint and the proposed
Amended

Complaint,

§ 1981/§ 1983,
discussed

and

above,

Lee

is

Title

VII

sovereign

attempting
claims

to

against

immunity

assert
the

bars

ADA,

Army.

the

As

ADA

and

§ 1981/§ 1983 claims, and the Title VII claims fail because Lee
did not exhaust her administrative remedies.

Accordingly, Lee’s

proposed amendment is futile and is thus denied.

See Cockrell

v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam)
(“Leave to amend a complaint is futile when the complaint as
amended

would

still

be

properly

dismissed

or

be

immediately

subject to summary judgment for the defendant.”).
CONCLUSION
For

the

reasons

set

forth

above,

the

Army’s

Motion

to

Dismiss (ECF No. 9) is granted, and Lee’s Motion to Amend (ECF
No. 11) is denied.

IT IS SO ORDERED, this 22nd day of July, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

10