Thompson v. Simpler et al
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 11/25/2015. (c/m)(hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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EMMANUEL THOMPSON, et al.,
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Plaintiffs,
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v.
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GARY SIMPLER, et al.,
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Defendants.
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Civil Action No. RDB-15-1302
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MEMORANDUM OPINION
The present action consists of two consolidated cases.1 In the first case, Plaintiff
Emmanuel Thompson (“Thompson”) brought this action against Defendants Gary
Simpler, (“Simpler”), Andrew Pretzello (“Pretzello”) and the United States Nuclear
Regulatory Commission (the “NRC”) (collectively, “Defendants”),2 alleging violations
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the
Freedom of Information Act, 5 U.S.C. 552(a) (“FOIA”), 42 U.S.C. § 1981 and 42
U.S.C. § 1983. In the second case, Plaintiff Karl McDonald (“McDonald”) asserts
identical claims and facts to those levied by Thompson. Both McDonald and
Thompson (collectively, “Plaintiffs”) claim they suffered discrimination on the basis of
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The consolidated actions are Thompson v. Simpler, et al., RDB-15-1302, and McDonald v. Simpler, et
al., GJH-15-1343, the latter of which by Order of October 1, 2015 was consolidated under RDB-151302 and closed. The Clerk of the Court is instructed that Karl McDonald shall be listed as a second
plaintiff in this case. Both plaintiffs are proceeding pro se.
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Thompson originally named Scott Williamson (“Williamson”) as an additional defendant, but then
stipulated to Williamson’s dismissal with prejudice (ECF No. 4) on May 22, 2015.
their race while stationed, through their employment with GS4 American’s Waken
Hut Service (“Waken Hut”), at Defendant NRC. Due to the common questions of law
and fact, this Court consolidated the cases on October 2, 2015, pursuant to Rule 42(a)
of the Federal Rules of Civil Procedure. See Order, ECF No. 21.
Pending before this Court is Defendant Simpler’s Motion to Dismiss (ECF No.
17). In the pending Motion to Dismiss, Simpler moves to dismiss Plaintiff Emmanuel
Thompson’s Complaint. Generally, the consolidation of cases “is permitted as a matter
of convenience and economy in administration, [but] . . . does not merge the suits into
a single cause, or change the rights of the parties, or make those who are parties in one
suit parties in another.” Intown Properties Mgmt., Inc. v. Wheaton Van Lines, Inc., 271
F.3d 164, 168 (4th Cir. 2001) (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 49697 (1933)). Yet, in the interests of judicial economy and convenience, a party need not
file a dispositive motion in each action. Weststeyn Dairy 2 v. Eades Commodities Co.,
280 F. Supp. 2d 1044, 1074 (E.D. Cal. 2003). Accordingly, this Court will construe
Simpler’s Motion to Dismiss as addressed to both pro se Plaintiffs Thompson and
McDonald.The parties’ submissions have been reviewed and no hearing is necessary.
See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, Defendant Gary
Simpler’s Motion to Dismiss (ECF No. 17) is GRANTED. Plaintiff Emmanuel
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Thompson and Plaintiff Karl McDonald’s respective claims against Defendant Simpler
are accordingly DISMISSED and Simpler is dismissed from this consolidated action.3
BACKGROUND
This Court accepts as true the facts alleged in Plaintiffs’ complaints. 4 See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). This Court also recognizes that
Plaintiffs are pro se and has accorded their pleadings liberal construction. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
Plaintiffs allege that they suffered discrimination on the basis of their race while
stationed, through their employment with GS4 American’s Waken Hut Service
(“Waken Hut”) at Defendant NRC. At the time of the alleged discriminatory
conduct, 5 Thompson and McDonald were employed as security professionals by
Waken Hut but stationed at the NRC. Thompson Compl. ¶ 3, ECF No. 1. Beginning
in 2008, Defendant Simpler was allegedly assigned to the Plaintiffs’ work location as
the “Contracting Officer Technical Representative.” Id. ¶ 5. Plaintiffs are AfricanAmerican, whereas Simpler is Caucasian. Plaintiffs allege that Simpler made repeated
racially-charged derogatory remarks directed at the Plaintiffs and other African
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A Motion to Dismiss and Motion for Summary Judgment (ECF No. 30), filed by the remaining
Defendants Andrew Pretzello and the United States Nuclear Regulatory Commission remains pending
subject to further briefing by the parties.
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Apart from recounting specific personal information, the Thompson and McDonald Complaints are
identical. This Court will thus refer only to the Thompson Complaint in discussing the Plaintiffs’
allegations.
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Thompson was employed by Waken Hut and assigned to the NRC from 2004-2011. Thompson
Compl. ¶ 3. Thompson was discharged on September 15, 2011. Id. ¶ 14. McDonald was employed by
Waken Hut and assigned to the NRC from 1997-2011. McDonald Compl. ¶¶ 4, 15, Member Action
ECF No. 1. McDonald was also discharged on September 15, 2011. Id. ¶ 15.
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American employees from 2009-2010. Id. ¶¶ 6, 8, 9, 10. Defendant Pretzello, the
Deputy Director of Facilities and Security at the NRC, was allegedly Simpler’s
supervisor during all periods relevant to Plaintiffs’ claims.
In response to Simpler’s alleged actions, Plaintiffs filed a written complaint of
racial discrimination in January 2010.6 Id. ¶ 10. Later that month, McDonald attended
a meeting with Branch Chief Darlene Fenton (“Branch Chief Fenton”) and two other
individuals. Id. ¶ 11. At the meeting, McDonald described Simpler’s alleged
discriminatory actions in detail. Id. The Waken Hut management team then held a
meeting about the discrimination allegations, at which Defendant Pretzello was
present. Id. Thompson and McDonald allege that, despite these meetings, no action
was taken against Simpler. Id. ¶ 12.
Plaintiffs claim that Simpler continued to make racially-charged derogatory
comments to them. Id. ¶ 13. Thompson and McDonald consequently filed another
written complaint in April 2011 and met with Branch Chief Fenton to discuss their
complaint. Id. Branch Chief Fenton then allegedly told the Plaintiffs that she would
terminate Simpler. Id. Plaintiffs assert that “upper level management” at NRC,
including Pretzello, blocked Simpler’s termination. Id. Subsequently, Branch Chief
Fenton was allegedly “removed, relocated, and/or terminated.” Id. Thompson and
McDonald also claim they suffered demotions and pay cuts. Id. On September 15,
2011, they were discharged for alleged “timesheet falsification.” Id. ¶ 14. Plaintiffs
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Plaintiffs do not specify if the written complaint was filed with the NRC or Waken Hut.
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contend that this justification was mere pretext for their wrongful termination. Id. ¶
15.
STANDARDS OF REVIEW
I.
Rule 12(b)(1) of the Federal Rules of Civil Procedure
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure
for lack of subject matter jurisdiction challenges a court’s authority to hear the matter
brought by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md.
2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge,
asserting that the allegations in the complaint are insufficient to establish subject
matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations
of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009) (citation omitted). With respect to a facial challenge, a court will grant a motion
to dismiss for lack of subject matter jurisdiction “where a claim fails to allege facts
upon which the court may base jurisdiction.” Davis, 367 F. Supp. 2d at 799. Where
the challenge is factual, “the district court is entitled to decide disputed issues of fact
with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. A plaintiff carries
the burden of establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648,
654 (4th Cir. 1999).
II.
Rule 12(b)(1) of the Federal Rules of Civil Procedure
In a ruling on a motion to dismiss, this Court must accept the factual allegations
in the plaintiff’s complaint as true and construe those facts in the light most favorable
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to the plaintiffs. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.
1999). Moreover, a pro se litigant’s complaint should not be dismissed unless it appears
beyond doubt that the litigant can prove no set of facts in support of his claim that
would entitle him to relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Yet,
a plaintiff’s status as pro se does not absolve him of the duty to plead adequately. See
Stone v. Warfield, 184 F.R.D. 553, 555 (D. Md. 1999) (citing Anderson v. Univ. of Md.
Sch. Of Law, 130 F.R.D. 616, 617 (D. Md. 1989), aff’d, 900 F.2d 249, 1990 WL 41120
(4th Cir. 1990)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, 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). Rule 12(b)(6) of the Federal Rules of Civil Procedure
authorizes the dismissal of a complaint if it fails to state a claim upon which relief can
be granted. The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and
not to resolve contests surrounding the facts, the merits of a claim, or the applicability
of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The
Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil
actions be alleged with greater specificity than previously was required.” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted).
ANALYSIS
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It appears that only Counts One and Five of Plaintiffs’ Complaints are directed
at Defendant Simpler.7 In Count One, Plaintiffs allege that Simpler, in his individual
capacity, violated 42 U.S.C. § 1981 by acting in a racially discriminatory manner
towards them from 2009 through their discharge on September 15, 2011. In Count
Five, Plaintiffs claim that Simpler’s racially discriminatory conduct also violated 42
U.S.C. § 1983. Simpler moved to dismiss Counts One and Five on several grounds.
First, Simpler argues that neither 42 U.S.C. § 1981 nor 42 U.S.C. § 1983 provides a
remedy for conduct committed under color of federal law. Second, Simpler contends
that, even if Plaintiffs’ claims are construed under Bivens v. Six Unknown Named
Narcotic Agents, 403 U.S. 388 (1981), or Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., each construction presents unsurmountable hurdles. With
respect to a Bivens route, Simpler argues that Plaintiffs’ claims are time-barred by the
relevant statute of limitations. Regarding the Title VII route, Simpler contends that
Title VII does not provide for individual liability. Each argument will be addressed in
turn.
I. Plaintiffs’ 42 U.S.C. §§ 1981, 1983 Claims
Neither § 1981 nor § 1983 applies to individuals acting under color of federal
law. Instead, § 1981 and § 1983 target individuals acting under color of state law only.
See Middlebrooks v. Leavitt, 525 F.3d 341, 349 (4th Cir. 2008) (stating unequivocally
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Thompson and McDonald assert identical counts against the Defendants. Compare Thompson
Compl. with McDonald Compl.
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that § 1981 does not “provide a remedy against federal officials”). This Court clearly
applied this principle in Durham v. Rapp, 64 F. Supp. 3d 740, 746 (D. Md. 2014), in
which it distinguished federal officials acting under color of state law from federal
officials acting under federal law and noted that unlike the former, the latter are not
subject to suit under § 1983. See also Chin v. Wilhelm, 291 F.Supp.2d 400, 404
(D.Md.2003) (federal employee acting under color of federal law, rather than state law,
not subject to suit under § 1983).
Here, Simpler, as a “Contracting Officer Technical Representative” for the
NRC, was a federal employee acting under color of federal law when he allegedly
discriminated against Thompson and McDonald. Plaintiffs have thus failed to state a
claim for which relief may be granted under either § 1981 or § 1983.
II. Plaintiffs’ Bivens Claims
Defendant Simpler further argues that even if Plaintiffs intended to assert a
claim against him under Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388
(1981),8 such a claim would be time-barred by the applicable statute of limitations. This
argument is properly construed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, as the expiration of the limitations period prevents this Court from
exercising subject matter jurisdiction over the claim. In Bivens, the United States
Supreme Court established a private cause of action for victims of constitutional
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Plaintiffs neither cite to nor appear to raise any arguments regarding Bivens. In construing their pro se
pleadings liberally, however, this Court will assume Plaintiffs intended to assert a Bivens claim against
Defendant Simpler.
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violations committed by federal actors. 403 U.S. 388 (1981). This right is essentially
“the federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.”
Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) (internal citation omitted). As such,
courts generally apply § 1983 law to actions pursued under Bivens. See Butz v.
Economou, 438 U.S. 478 (1978).
Although § 1983 does not specify a limitations period, this Court must look to
Maryland law for the appropriate statute of limitations. Grattan v. Burnett, 710 F.2d
160, 162 (4th Cir. 1983); see also Arawole v. Gaye, Civ. A. No. PJM-02-167, 2002 WL
32356684, at *1 (D. Md. Feb. 5, 2005), aff’d 46 F. App’x 206 (explaining that courts
apply the § 1983 limitations period to actions arising under Bivens). This Court,
applying Maryland law, accordingly applies the three-year statute of limitations for
civil actions, Md. Code Ann., Cts. & Jud. Proc. § 5-101. Arawole, 2002 WL 32356684,
at *1. In contrast to the derivation of the statute of limitations from state law, the time
of accrual of a civil rights action is a question of federal law. Cox v. Stanton, 529 F.2d
47, 50 (4th Cir. 1975); Arawole, 2002 WL 32356684, at *1 (“Although the state statute
of limitations applies, the time of accrual of the action is a federal question.”). Federal
law holds that the time of accrual is when the plaintiff knows or has reason to know of
the injury which is the basis of the action. Cox, 529 F.2d at 50 (citing Young v.
Clinchfield R.R. Co., 288 F.2d 499, 503 (4th Cir. 1961)).
Accordingly, any Bivens-related claims by Plaintiffs are time-barred under
Maryland’s statute of limitations. At the latest, Plaintiffs’ cause of action accrued on
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September 15, 2011—the date of their discharge—which constitutes Simpler’s final
alleged discriminatory act against Plaintiffs during their employment. See Bireline v.
Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977) (concluding that the plaintiff’s cause of
action against her employer for discrimination accrued on or before the date she was
given a termination notice and noting that under applicable federal law, the time of
accrual is that point in time when the plaintiff knows or has reason to know of the
injury which is the basis of the action). Under the applicable three-year statute of
limitations, Plaintiffs were thus required to file any action by September 15, 2014. Yet,
Thompson and McDonald filed their Complaints some eight months later, on May 6,
2015 and May 11, 2015, respectively. They, therefore, fail to state a claim for relief
under Bivens.
III. Plaintiffs’ Title VII Claims
Finally, to the extent that Plaintiffs assert claims against Simpler in his
individual capacity pursuant to Title VII of the Civil Rights Act of 1964,9 they are
foreclosed from doing so. The United States Court of Appeals for the Fourth Circuit
has clearly held that Title VII does not provide for individual liability. Birkenbeck v.
Marvel Lighting Corp., 30 F.3d 507 (4th Cir. 1994); see also Russell v. Russel Motor Cars
Inc., 28 F. Supp. 3d 414, 419 (D. Md. 2014) (stating that Title VII does not permit
individual liability); Lissau v. S. Food Serv. Inc., 159 F.3d 177, 180 (4th Cir. 1998) (“An
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Although Counts One and Five do not refer to Title VII, Plaintiffs offer Title VII as legal authority
for the present action when describing the alleged discriminatory conduct.
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analysis of Title VII's language and its remedial scheme leads us to join the other
circuit courts and conclude that supervisors are not liable in their individual capacities
for Title VII violations.”). As Plaintiffs levy Counts One and Five against Simpler in
his individual capacity only, they have failed to state a claim for which relief may be
granted under Title VII.
In sum, in their respective communications with this Court, neither Plaintiff
provides any facts to rebut Simpler’s arguments. This Court shall, therefore, grant
Simpler’s Motion to Dismiss, as Plaintiffs have failed to state a claim against Simpler
for which relief may be granted under 42 U.S.C. §§ 1981, 1983, Bivens, or Title VII.
CONCLUSION
For the reasons stated above, Defendant Gary Simpler’s Motion to Dismiss
(Member Action ECF No. 17) is GRANTED. Plaintiff Emmanuel Thompson and
Plaintiff Karl McDonald’s respective claims against Defendant Simpler are accordingly
DISMISSED and Simpler is dismissed from this consolidated action.
A separate Order follows.
Dated:November 25, 2015
/s/____________________________
Richard D. Bennett
United States District Judge
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