Archdale v. Vilsack et al

Filing 40

ORDER & OPINION entered by Chief Judge James E. Shadid on 3/9/2015: Defendants Katherine M O'Hara ("O'Hara"), Paul G. Sebesta ("Sebesta"), Todd J. Ward ("Ward"), and Christy G. Gibson's ("Gibson") Motions to Dismiss 19 24 are GRANTED. Plaintiff's Complaint is DISMISSED as to the aforementioned Defendants. (SEE FULL WRITTEN ORDER & OPINION)(JRK, ilcd)

E-FILED

Monday, 09 March, 2015 03:51:57 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
MICHELLE L. ARCHDALE
Plaintiff
v.
THOMAS J. VILSACK, SECRETARY
DEPARTMENT OF AGRICULTURE
AGENCY, et al.
Defendants.

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Case No.: 13-1389

O R D E R AND OPINION
This matter is before the Court on Defendants Katherine M. O'Hara (“O’Hara”), Paul G.
Sebesta (“Sebesta”), Todd J. Ward (“Ward”), and Christy G. Gibson’s (“Gibson”) Motions to
Dismiss [19][24]1. This motion is fully briefed and for the reasons set forth below, Defendants
Motion to Dismiss is GRANTED.
BACKGROUND
On August 28, 2013, Plaintiff Michelle Archdale (“Archdale”) filed a pro se Complaint
alleging she was deprived of due process and denied equal protection under the law. Specifically,
Archdale alleges as follows:
Defendant O’Hara, Director of the National Center for Agricultural Utilization
(“NCAUR”) violated Archdale’s due process rights by drafting a letter that forced Archdale to
use her annual sick and when she cared for her pregnant daughter and son who suffered from
muscular dystrophy.
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Defendant Gibson adopted the Motion to Dismiss and supporting Memorandum filed by Defendants Sebasta,
O’Hara, and Ward. See Docket Entries 19 and 24.

Defendant Sebesta, Director of NCAUR is accused of refusing to allow Archdale to work
after 6:00 P.M. when she arrived to work after 10:00 A.M.
Defendant Ward, Research Leader with the NCAUAR, allegedly ignored an agreement
between ARS and AFGE Local 3247. Archdale alleges Ward injured, oppressed, threatened, or
intimidated her, in violation of Constitution, when he warned her about arriving to work late.
Defendant Gibson, administrative officer of NCAUR, allegedly conspired with the other
Defendants to deprive her of due process rights or equal protection by ignoring an agreement
between ARS and AFGE Local 3247 regarding medical documentation, thus forcing Archdale to
take leave or leave without pay.
Archdale seeks $527,000 in compensatory damages for bodily harm, emotional harm,
pain and suffering, loss of income, and loss of enjoyment of life. Archdale also seeks punitive
damages.
DISCUSSION
1.

Legal Standard
Court have traditionally held that a complaint should not be dismissed unless it appears

from the pleadings that the plaintiff could prove no set of facts in support of her claim which
would entitle her to relief. See Conley v. Gibson, 355 U.S. 41 (1957); Gould v. Artisoft, Inc., 1
F.3d 544, 548 (7th Cir. 1993). Rather, a complaint should be construed broadly and liberally in
conformity with the mandate in Federal Rule of Civil Procedure 8(f). More recently, the
Supreme Court has phrased this standard as requiring a showing sufficient “to raise a right to
relief beyond a speculative level.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).

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Furthermore, the claim for relief must be “plausible on its face.” Id.; Ashcroft v. Iqbal, 129 S.Ct.
1937, 1953 (2009).
For purposes of a motion to dismiss, the complaint is construed in the light most
favorable to the plaintiff, its well-pleaded factual allegations are taken as true, and all
reasonably-drawn inferences are drawn in favor of the plaintiff. See Albright v. Oliver, 510 U.S.
266, 268 (1994); Hishon v. King & Spalding, 467 U.S. 69 (1984); Lanigan v. Village of East
Hazel Crest, 100 F.3d 467 (7th Cir. 1997); M.C.M. Partners, Inc. v. Andrews-Bartlett & Assoc.,
Inc., 62 F.3d 967, 969 (7th Cir. 1995); Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir.
1992).
2. Analysis
As an initial matter, the Court notes Archdale cites 18 U.S.C. § 241 and 7 U.S.C. 2209H
as bases for this Court to exercise its jurisdiction over this dispute. However, 18 U.S.C. § 241 is
criminal statute and 7 U.S.C. 2209H is an appropriations statute and therefore neither are
applicable to the current case; accordingly, that portion of Archdale’s Complaint is stricken. The
remainder of Archdale’s Complaint alleges the Defendants violated her Fifth Amendment Due
Process rights and her Fourteenth Amendment right to Equal Protection under the laws by
forcing her to use all of her sick leave, annual leave, and leave without pay for a period of four
years. Defendants seeks dismissal of this action for failure to state a claim, arguing the Civil
Services Reform Act (“CSRA”), 5 U.S.C.S. § 1101 et seq. precludes federal courts from hearing
suits related to federal personnel actions. While the Court finds Defendants’ arguments
compelling and will address the same, Plaintiff’s Complaint fails for the other reasons.

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Plaintiff first alleges Defendants deprived her of her sick and annual without due process.
In order to establish a due process violation, a plaintiff must demonstrate: (1) the defendant
deprived her of a constitutionally protected liberty or property interest, and (2) the deprivation
was without sufficient procedural protections. Galdikas v. Fagan, 342 F.3d 684, 691 (7th Cir.
2003); Williams v. Seniff, 342 F.3d 744, 786-87 (7th Cir. 2003); Polenz v. Parrott, 883 F.2d 551,
555 (7th Cir. 1989). Here, the Defendants did not deprive Archdale of her sick leave, annual
leave, or leave without pay; on the contrary, Defendants allowed her to utilize her leave time to
care for her child. Employees do not have a due process right to dictate their hours and
schedules contrary to their employer’s direction. Accordingly, this claim must be dismissed for
failure to state a claim.
Archdale second claim is Defendants violated her right to Equal Protection under the
laws. In a traditional equal protection claim, a plaintiff must demonstrate: (1) she is otherwise
similarly situated to members of the unprotected class; (2) she was treated differently from
members of the unprotected class; and (3) the defendant acted with discriminatory intent. See
Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir. 2000). The Seventh Circuit also recognizes equal
protection claims brought by a “class of one” when: (1) the plaintiff alleges that he has been
intentionally treated differently from others similarly situated and; (2) there is no rational basis
for the difference in treatment or the defendant was motivated by discriminatory animus. See
McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004); Purze v. Village of
Winthrop Harbor, 286 F.3d 452, 454-55 (7th Cir. 2002); Stachowski, 425 F.3d at 1078-79.
Here, Plaintiff makes no allegations in her complaint that she is in a protected class;
accordingly, Plaintiff fails to state a claim based on a traditional equal protection theory. To the

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extent Plaintiff is attempting to state an equal protection claim based on a class of one theory, her
claim still fails. “In order to succeed on a class of one theory Plaintiff must demonstrate that
[she was] treated differently than someone who is prima facie identical in all relevant respects.”
Purze v. Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. Ill. 2002); see also, Ind. State Teachers
Ass'n v. Bd. of Sch. Comm'rs, 101 F.3d 1179, 1181-82 (7th Cir. 1996).
Here, Plaintiff alleges “there were always other employees working well after 6:00 PM,”
“they dictated that I could not use the flexible times that every other employee in the building
used,” and her employer did not adjust her “schedule as the other employees did.” (Doc. 1 at pp.
1, 5). These allegations are not sufficient to state an equal protection class of one claim.
Archdale not only failed to name specific employees that were similarly situated, but also failed
to allege any facts suggesting that another employee in a situation identical to hers was allowed
to use flex hours, change their schedule, and not use annual or sick leave to care for a child.
Accordingly, this claim must be dismissed for failure to state a claim.
Even assuming arguendo that Plaintiff had stated a claim for which relief could be
granted, Defendants argues that the action should be dismissed on an alternative theory for
failure to state a claim. Defendants seeks dismissal of this action for failure to state a claim,
arguing the Civil Services Reform Act (“CSRA”), 5 U.S.C.S. § 1101 et seq. precludes federal
courts from hearing suits related to federal personnel actions.
Not all constitutional claims may be brought in federal court as Congress has established
comprehensive administrative bodies with broad remedial powers to resolve all contested matters
before them. See Bush v. Lucas, 462 U.S. 367 (1983); Paige v. Cisneros, 91 F.3d 40, 43 (7th Cir.
1996); Sawyer v. Nicholson, 2007 WL 3087177 (N.D. Ill. Oct. 19, 2007).

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The CSRA is a remedial scheme that provides a “comprehensive framework for handling
the complaints of civil service employees faced with adverse personnel decisions.” Richards v.
Kiernan, 461 F.3d 880, 883 (7th Cir. 2006), citing Ayrault v. Pena, 60 F.3d 346, 347 (7th Cir.
1995). The Seventh Circuit has held “[t]here is no question that the CSRA provides the
exclusive remedy for an alleged constitutional violation . . . arising out of federal employment.”
Richards, 461 F.3d at 885, citing Bush v. Lucas, 462 U.S. 367, 368 (1983).
In Bivens v. Unknown Named Agents of Federal Bureau of Narcotics, the Supreme
Court held a plaintiff may bring a cause of action for damages against federal employees in their
individual capacity acting under federal authority for unconstitutional conduct. 403 U.S. 388
(1971). However, Bivens also held that an action to recover damages may be defeated in two
circumstances: the first is when defendants are able to demonstrate “special factors counselling
hesitation in the absence of affirmative action by Congress.” Bivens, supra at 396; Davis v.
Passman, 422 U.S. 228, 245 (1979). The second is when defendants are able to show Congress
has provided an alternative remedy, which it explicitly declared to be a substitute for recovery
directly under the Constitution and viewed as equally effective. Bivens, supra at 397.
The Supreme Court and the Seventh Circuit has viewed the extensive and comprehensive
administrative system that Congress has established to address the complaints of civil services
employer as a “special factor” counseling hesitation in the absence of the affirmative action by
Congress. Bush v. Lucas, 462 U.S. 367, 368 (1983); see also, Chilicky, 487 U.S. at 423 (“When
the design of a Government program suggests that Congress has provided what it consider
adequate remedial mechanisms for constitutional violations they may occur in the course of its
administration, we have not created additional Bivens remedies.”); Feit v. Ward, 886 F. 2d 848,

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851 (1989)(“federal employment is a special factor counseling hesitation in creating a judicial
remedy.”)
The Supreme Court has permitted Bivens actions for Due Process and Cruel and Unusual
Punishments Clause of the Eighth Amendment violations in limited circumstances when “no
special factors counselling hesitation in absence of affirmative action by Congress,” no explicit
statutory prohibition against the relief sought, and no exclusive statutory alternative remedy. See
Davis v. Passman, supra at 246-247; Carlson v. Green at 18-20. However, the Supreme Court
has been very cautious not to allow any further extensions of Bivens remedies into new contexts.
See F.D.I.C. v. Meyer, 510 U.S. 471 (1994); Schweiker v. Chilicky, 487 U.S. 412, 421 (1988);
Bush v. Lucas, 462 U.S. 369-71 (1983). This is evidenced by the Court’s refusal to create a
Bivens remedy for a First Amendment violation “arising out of an employment relationship
governed by comprehensive procedural and substantive provision giving meaningful remedies
against the United States.” Bush v. Lucas, 462 U.S. 367, 368 (1983); see also, Schweiker v.
Chilicky, 487 U.S. 412, 422 (1988). The facts set forth in Bivens were unique, involving an
egregious breach of the Fourth Amendment by federal agents for which there would have been
no effective remedy unless the Court created a remedy. However, this is not the case here.
Here, there is no dispute that this is an employment action. The crux of Plaintiff’s claim
is Defendants forced her to use all her sick and annual leave without pay. In her response to
Defendant’s Motion to Dismiss, Plaintiff does not to appear to be challenging the applicability of
the CRSA, but rather its effectiveness. Specifically, Plaintiff states CRSA was designed to ensure
the rights of federal employees, but argues “none of the arenas designed by the CSRA to protect
the employee against violations of their constitutional rights are still useful.” (Doc. 28 at pg. 6).

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Plaintiff stated “the truth is that whether or not Bivens type cases are allowed, the protections
under CSRA have basically ceased to exist” and “however well written the CSRA might be, the
remedial systems built into have failed. The Agencies have distorted the system that a Bivens
procedure is the only avenue left of redress of Constitutionally forbidden actions.” (Doc. 28 at
pg. 8).
Even taking the facts most favorable to the Plaintiff, her Complaint must be dismissed. In
this case, Archdale is required to use the CSRA statutory scheme set up by Congress for Civil
Service employee.
Allowing resort to alternative remedies for complaints about
matters within the statute’s scope would undermine the CSRA
because the statute “prescribes in great detail the protections and
remedies applicable to such action, including the availability of
administrative and judicial review.” Lower courts, following
Fausto, have recognized that the CSRA essentially preempted the
field by “supersed[ing] preexisting remedies for all federal
employees.”
Ayrault, 60 F.3d at 348, citing United States v. Fausto, 484 U.S. 439, 443 (1988); LeBlanc v.
United States, 50 F.3d 1025, 1030 (Fed. Cir. 1995). As it is inappropriate for federal courts to
“supplement the comprehensive procedural and substantive remedies provided to federal
employees under the CSRA,” the Court must find that Archadale is precluded from bringing her
claim in federal district court. Her Complaint must therefore be dismissed, both for lack of
subject matter jurisdiction, and alternatively for failure to state a claim upon which relief can be
granted. See Richards, 461 F.3d at 886, citing Massey v. Helman, 196 F.3d 727, 738 (7th Cir.
2000).

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CONCLUSION
For the reasons set forth above, Defendants Katherine M O'Hara (“O’Hara”), Paul G.
Sebesta (“Sebesta”), Todd J. Ward (“Ward”), and Christy G. Gibson’s (“Gibson”) Motions to
Dismiss [19][24] are GRANTED. Plaintiff’s Complaint is DISMISSED as to the
aforementioned Defendants.
Entered this 9th day of March, 2015.
/s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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