Jordan v. Mitchell et al

Filing 19

RULING: Accordingly, the Court hereby GRANTS Defendants motions 10 & 17 to dismiss, in part, as they relate to Plaintiffs civil conspiracy claim under 42 U.S.C. § 1985(3). In addition, the Court hereby DENIES Defendants motions 10 & 17 to dismiss as to each of Plaintiffs remaining claims.. Signed by Judge James J. Brady on 7/7/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EDMOND D. JORDAN
CIVIL ACTION
VERSUS
NO. 10-746-JJB-CN
MARY MITCHELL, ET AL

RULING ON DEFENDANTS’ MOTIONS TO DISMISS
This matter is before the Court on Defendants’ Motion (doc. 10) to Dismiss
and Amended Motion (doc. 17) to Dismiss. Plaintiff has filed an opposition (docs.
14).

This Court’s jurisdiction exists pursuant to 28 U.S.C. § 1331.

Oral

argument is not necessary. For the reasons stated herein, the Court GRANTS
Defendants’ motions, in part, and DENIES Defendants’ motions, in part.
Background
I. Facts
This case arises out of the allegedly discriminatory and retaliatory
treatment of Plaintiff Edmond D. Jordan (“Jordan”) by his employer and
Defendant, the Federal Emergency Management Agency (“FEMA”).
In November 2007, Jordan filed a complaint with FEMA’s Ethics Counsel
against his supervisor and Defendant, Jill Igert (“Igert”) for allegedly engaging in
unethical conduct during a conference call. In January 2008—despite that he
had never been reprimanded for his job performance—Igert informed Jordan that
he would no longer be allowed to review and/or approve lease terminations for
FEMA’s Individual Assistance Section.
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In addition, in March 2008, a fellow

employee informed Jordan that Igert had been “surreptitiously looking through a
glass window in his office door in an attempt to spy on him” and “making
surreptitious attempts to look over his shoulder at his computer screen.” Jordan
alleges that he notified FEMA representatives but that no action was taken.
Jordan also alleges that another of his supervisors and Defendant, Mary
Mitchell (“Mitchell”), falsely accused him of taking a two-and-a-half-hour lunch
break, and that when he offered witnesses to contradict her account, she refused
to listen to them. Later, Mitchell questioned Jordan “in a rather aggressive and
intimidating fashion” as to his whereabouts after he returned from an
appointment with the Equal Rights Office (“ERO”) and contacted the ERO to
confirm that Jordan had been there. Then, in mid-2008, Mitchell twice accused
Jordan of taking unexcused leave and excessive absences and threatened to
terminate him if the conduct continued.
In June 2008, Jordan learned from a fellow employee that Mitchell and
Igert had been tracking the attendance of all lawyers at FEMA’s Baton Rouge
office. According the informant, Igert and Mitchell were concerned about the
attendance of a “certain employee” and had instituted the office-wide survey to
prevent any claims of discrimination.

On July 11, 2008, Jordan left FEMA,

allegedly because he did not feel comfortable in the environment created by Igert
and Mitchell.

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On July 10, 2009, Jordan filed suit against Defendants in this Court (“the
First Action”). 1 Jordan initially asserted that (1) Igert, Mitchell and FEMA had
created a hostile work environment (“HWE”) and retaliated against him for filing a
complaint against Igert in violation of 42 U.S.C. §§ 1981 & 1983 and the
Whistleblower Protection Act, 42 U.S.C. § 2302(b)(8) (“WPA”); and (2) Ingert and
Mitchell engaged in a civil consipiracy to interfere with Jordan’s civil rights in
violation of 42 U.S.C. § 1985(3) (“§ 1985 claim”).
On March 4, 2010, this Court granted Defendants’ motion to dismiss each
of Plaintiff’s claims in the First Action (doc. 10, ex. 2). The Court found that
Plaintiff’s HWE and retaliation claims were precluded because they were covered
exclusively by Title VII and, at the time, Plaintiff’s Equal Employment Opportunity
Commission (“EEOC”) charge was still under review.
concluded that these claims were premature.

As such, the Court

The Court also found that

Plaintiff’s § 1985 claim must be dismissed because it “ar[ose] out of facts that
would give rise to a Title VII employment discrimination claim” and was thus
preempted, given that Title VII represents the exclusive method of recovery in
such situations. Finally, the Court dismissed Plaintiff’s WPA claim because the
WPA does not provide for direct relief in federal court, and in order for a federal
court to hear a WPA claim as an original matter, it must be combined with a Title
VII claim, which Plaintiff had not asserted.
II. Procedural History
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The suit was captioned as No. 09-445-JJB-SCR.

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On November 10, 2010, Jordan again filed suit against Defendants (doc.
1). Plaintiff’s complaint in the Second Action was completely identical to the
complaint in the First Action except that Plaintiff noted that the EEOC had
dismissed his charge. On May 25, 2011, Defendants filed their motion to dismiss
(doc. 10). Defendants assert that Plaintiff’s WPA and § 1985 claims must be
dismissed under the doctrine of res judicata.

Defendants also assert that

Plaintiff’s claims against Igert and Mitchell, in their official capacities, were barred
by the doctrine of sovereign immunity. In opposition (doc. 14), Plaintiff asserts
that his WPA and § 1985 claims should not be barred by the doctrine of res
judicata because they were not decided on the merits.
Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6) a federal district court
should dismiss the plaintiff’s complaint if it “fails to state a claim upon which relief
can be granted.”

To state a valid claim for relief, plaintiff’s complaint must

contain sufficient factual allegations that, if taken as true, “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2009). That is, a plaintiff cannot rely on conclusory allegations or recitations of
the elements of an offense to survive a motion to dismiss. Id.
Discussion
I. Sovereign Immunity

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Defendants assert that all of Plaintiff’s claims against Igert and Mitchell, in
their official capacities, are barred by the doctrine of sovereign immunity. Plaintiff
failed to address Defendants’ assertion in his opposition.
A federal agency and its officers, in their official capacities, may be sued
only to the extent that Congress has waived their sovereign immunity. F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994); Wilkerson v. United States, 67 F.3d 112, 118
(5th Cir. 1995); Whitley v. Hunt, 158 F.3d 882, 885 (5th Cir. 1998). To find that a
waiver has occurred, the court must conclude that Congress “unequivocally
expressed” its intent to waive the agency’s or its officers’ sovereign immunity “in
statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996). Congress has done so,
in the context of Title VII suits, subject to the requirement that the aggrieved
federal employee must first exhaust his administrative remedies with the EEOC.
42 U.S.C. 2000e-16(c); Fitzgerald v. Sec'y, U.S. Dep't of Veterans Affairs, 121
F.3d 203, 206 (5th Cir.1997).
Here, Plaintiff has alleged claims arising under Title VII, and Congress has
expressly waived the United States’, its agencies’ and their officers’ sovereign
immunity from claims arising under Title VII.

Fitzgerald, 121 F.3d at 206.

Therefore, Plaintiff’s claims may not be dismissed on the basis of sovereign
immunity.
II. Res Judicata
Defendant asserts that Plaintiff’s WPA and § 1985 must be dismissed
under the doctrine of res judicata. Plaintiff asserts that the Court never decided
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his claims on the merits. Instead, Plaintiff alleges that the Court simply adjudged
his potential Title VII claims to be premature and determined that his WPA and §
1985 claims could only be heard in conjunction with a Title VII claim.
Under the doctrine of res judicata, a final judgment on the merits of an
action precludes the parties from relitigating issues that were or could have been
addressed in that action.

Allen v. McCurry, 449 U.S. 90, 94 (1980).

Four

elements must be met for res judicata to bar a claim: (1) the parties to the two
actions must be identical; (2) the prior judgment must have been rendered by a
court of competent jurisdiction; (3) there must be a final judgment on the merits;
and (4) the same claim must be raised in both cases. In re Ark-La-Tex Timber
Co., 482 F.3d 319, 330 (5th Cir. 2007). According to the United States Court of
Appeals for the Fifth Circuit, when a court dismisses a suit on jurisdictional
grounds, the dismissal does not serve as a final judgment on the merits for the
purposes of res judicata.2
The Court finds that only Plaintiff’s § 1985 claim should be dismissed. In
its prior ruling, the Court noted that Plaintiff had voluntarily withdrawn his Title VII
claims because he had not yet exhausted his remedies with the EEOC. As such,
the Court also found that it did not have jurisdiction over Plaintiff’s WPA claims.
In doing so the Court recognized that “[Plaintiff’s] failure to bring a Title VII claim
2

Miller v. Nationwide Life Ins. Co., 2008 WL 3086783, at *5 (5th Cir. Aug. 6, 2008) (stating that
jurisdictional dismissals are “insufficient to serve as final judgments on the merits for res judicata
purposes”); Darlak v. Bobear, 814 F.2d 1055, 1064 (5th Cir.1987) (holding that a dismissal based on
sovereign immunity is not “on the merits” for res judicata purposes); Nilsen v. City of Moss Point, 701 F.2d
556, 562 (5th Cir.1983) (holding that “[d]ismissals for want of jurisdiction are not decisions on the merits”
for res judicata purposes).

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removes this case from those ‘mixed’ cases”—cases wherein the plaintiff brings
a discrimination and a retaliation claim—“over which the district courts have
jurisdiction” (doc. 10, ex. 2, p. 4). As such, the Court’s prior ruling as to Plaintiff’s
WPA claim was entirely jurisdictional in nature and does not operate as a
decision on the merits. Miller, 2008 WL 3086783, at *5
With regards to Plaintiff’s § 1985 claim, the Court, in its prior ruling, stated:
[A]ny claims under 42 U.S.C. §§ 1981, 1983, and/or
1985(3) are precluded, as ‘Title VII provides the
exclusive remedy for employment discrimination claims
raised by federal employees.’ Even though Plaintiff
claims civil conspiracy, that claim cannot afford an
independent ground for relief, as it arises out of facts
that would give rise to a Title VII employment
discrimination claim.
Therefore, the claims are
precluded and the Court must dismiss those claims.
(doc. 10, ex. 2, p. 3) (internal citations omitted). In the present case all four
elements are present for the application of res judicata. First, the parties are the
same—Jordan is the Plaintiff, and Igert, Mitchell and FEMA are the Defendants.
Second, this Court was one of competent jurisdiction. The federal courts have
jurisdiction over cases arising under § 1985 and this Court, therefore, had
jurisdiction to determine that Plaintiff’s claims were preempted by Title VII. 28
U.S.C. § 1343.

Third, there was a judgment on the merits.

The Court

determined that Plaintiff’s § 1985 claim was precluded because Plaintiff’s claim
was governed exclusively by Title VII (doc. 10, ex. 2, p. 3). Finally, Plaintiff
raised claims under § 1985 in both cases. As such, all the elements for res
judicata are met as to Plaintiff’s § 1985 claims.
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CONCLUSION
Accordingly, the Court hereby GRANTS Defendants’ motions (docs. 10 &
17) to dismiss, in part, as they relate to Plaintiff’s civil conspiracy claim under 42
U.S.C. § 1985(3). In addition, the Court hereby DENIES Defendants’ motions
(docs. 10 & 17) to dismiss as to each of Plaintiff’s remaining claims.
Signed in Baton Rouge, Louisiana this 7th day of July, 2011.

S

JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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