Smith v. Communications Workers of America (CWA) - District 2 et al
Filing
58
MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 12/26/2012. (bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
KENDALL SMITH,
Plaintiff,
v.
Civil Action No. 8:12-cv-00027-AW
COMMUNICATIONS WORKS OF
AMERICA (CWA) – DISTRICT 2 et al.,
Defendants.
MEMORANDUM OPINION
Pro se Plaintiff Kendall Smith instituted the instant action on January 3, 2012. Smith’s
25-Count Complaint sounds in labor and employment law. Smith sues the following Defendants:
(1) Communications Workers of America (CWA) - District 2; (2) CWA Local 2336; (3) CWA
AFL-CIO; (4) CLC;1 2 (5) Verizon Washington DC Inc.; (6) Verizon Maryland Inc.; (7) Verizon
Communications Inc.; (8) Reed Smith LLP;3 4 (9) National Labor Relations Board MD & DC;
(NLRB); (10) Equal Employment Opportunity Commission (EEOC); and (11) the Department of
Labor (DOL). Pending before the Court is the Defendant EEOC’s Motion to Dismiss. The Court
has reviewed the record and finds no hearing necessary. For the reasons articulated herein, the
Court GRANTS the EEOC’s Motion to Dismiss.
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The Court refers to Defendants (1)-(4) as “the Union Defendants.”
2
Defendant (4), CLC, is evidently the same entity as Defendant (3), CWA AFL-CIO.
3
Defendant Reed Smith serves as legal counsel for the Verizon Defendants.
4
The Court refers to Defendants (5)-(8) as “the Verizon Defendants.”
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I.
FACTUAL AND PROCEDURAL BACKGROUND
The instant dispute traces to an employment relationship gone awry between Plaintiff and
the Verizon Defendants. In 1999, Plaintiff started working for the Verizon Defendants in
maintenance. On November 8, 2008, the Verizon Defendants suspended Plaintiff without pay for
twenty days. The Verizon Defendants suspended Plaintiff again on November 10, 2009. On
December 18, 2009, the Verizon Defendants terminated Plaintiff for an alleged violation of the
company code of conduct.
On November 20, 2008, Plaintiff filed an administrative charge of employment
discrimination with the EEOC. Plaintiff amended his charge on November 19, 2009 to include
additional allegations of retaliation and harassment.
On February 15, 2011, the EEOC issued Plaintiff a “Dismissal and Notice of Rights,”
thereby terminating its processing of Plaintiff’s charge. The dismissal states that the EEOC
dismissed Plaintiff’s charge because it could not conclude that the information it obtained
through its investigation violated the applicable statutes.
On November 1, 2012, Plaintiff filed his Complaint. Doc. No. 1. In his Complaint,
Plaintiff asserts the following claims against the EEOC: collusion, violation of the FOIA, breach
of contract, and breach of duty. To support these claims, Plaintiff alleges that the EEOC failed to
conduct a proper investigation of his charge. For instance, Plaintiff alleges that the EEOC failed
to properly investigate his allegation that someone called him the N word, failed to offer
mediation and perfunctorily negotiated on his behalf, and neglected to process his ADA charge.
Plaintiff also asserts that the EEOC took too long to process and investigate his charge, which
further evinces its failure to properly investigate his claims. Additionally, Plaintiff alleges that
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the EEOC violated FOIA by not providing him with all the documentation that he requested
pursuant to his FOIA request.
On December 3, 2012, the Court issued an Opinion and Order dismissing Plaintiff’s
claims as to all the other Defendants. The Court noted in its Opinion that, although it had
answered, the EEOC had yet to move to dismiss.
On the same day, the EEOC filed its Motion to Dismiss. Doc. No. 53. A Rule 12/56 letter
was issued the same day and Plaintiff has responded to the EEOC’s Motion to Dismiss.
II.
STANDARD OF REVIEW
A.
Motion to Dismiss—12(b)(1)
“There are two critically different ways in which to present a motion to dismiss for lack
of subject matter jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). “First, it
may be contended that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based.” Id. Where the defendant contends that the complaint fails to allege
facts sufficient to establish subject matter jurisdiction, “all the facts alleged in the complaint are
assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he
would receive under a Rule 12(b)(6) consideration.” Id. “Second, it may be contended that the
jurisdictional allegations of the complaint [are] not true.” Adams, 697 F.2d at 1219. In such
cases, “the court is free to consider exhibits outside the pleadings to resolve factual disputes
concerning jurisdiction.” Zander v. United States, 843 F. Supp. 2d 598, 603 (D. Md. 2012)
(internal quotation marks omitted) (quoting Smith v. Wash. Metro. Area Transit Auth., 290 F.3d
201, 205 (2002)).
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B.
Motion to Dismiss—12(b)(6)
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the plaintiff’s
complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent
cases, the U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
These cases make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (quoting Fed. R. Civ. P. 8(a)(2)). This
showing must consist of at least “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570.
In deciding a motion to dismiss, the court should first review the complaint to determine
which pleadings are entitled to the assumption of truth. See Iqbal, 129 S. Ct. at 1949–50. “When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. In so doing,
the court must construe all factual allegations in the light most favorable to the plaintiff. See
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court
need not, however, accept unsupported legal allegations, Revene v. Charles County
Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual
allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations
devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979).
C.
Summary Judgment
Summary judgment is appropriate only “if the movant shows that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
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R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). The Court must
“draw all justifiable inferences in favor of the nonmoving party, including questions of
credibility and of the weight to be accorded to particular evidence.” Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)). To defeat a motion for summary judgment, the nonmoving party must come
forward with affidavits or similar evidence to show that a genuine issue of material fact exists.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A disputed fact
presents a genuine issue “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248. Material disputes are those that “might affect
the outcome of the suit under the governing law.” Id.
Although the Court should believe the evidence of the nonmoving party and draw all
justifiable inferences in his or her favor, the nonmoving party cannot create a genuine dispute of
material fact “through mere speculation or the building of one inference upon another.” See Beal
v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Further, if a party “fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P.
56(e)(2). Finally, hearsay statements or conclusory statements with no evidentiary basis cannot
support or defeat a motion for summary judgment. See Greensboro Prof’l Firefighters Ass’n,
Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).
III.
LEGAL ANALYSIS
A.
Sovereign Immunity
The EEOC argues that, as an agency of the United States, Plaintiff must show that the
United States has waived its sovereign immunity and consented to the suit. See FDIC v. Meyer,
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510 U.S. 471, 475 (1994). Plaintiff has identified no such authority, and the Court is aware of
none. Although Plaintiff might try to sue the EEOC under the APA, as the Court noted in its
prior Opinion, the APA’s presumption of review of final agency action does not apply where
“agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). It is wellestablished that “an agency’s decision not to take enforcement action should be presumed
immune from judicial review under § 701(a)(2).” See Heckler v. Chaney, 470 U.S. 821, 832
(1985). Moreover, the EEOC’s determination of a charge is not final agency action and,
therefore, is not reviewable under the APA. See Georator Corp. v. EEOC, 592 F.2d 765, 767–68
(4th Cir. 1979). Assuming arguendo APA review were proper, the record does not reflect that the
EEOC’s alleged failure to investigate was arbitrary, capricious, or otherwise not accordance with
the law. See Doc. No. 53-4.
Nor could Plaintiff use the Federal Tort Claims Act as a basis for jurisdiction as plaintiffs
may not sue federal agencies eo nomine under the FTCA. See Meyer, 510 U.S. at 476; see also
Strong v. Dyar, 573 F. Supp. 2d 880, 884–85 (D. Md. 2008) (citations and internal quotation
marks omitted) (“Since the FTCA only waives sovereign immunity for suits brought against the
United States, 28 U.S.C. § 2674, suits brought against a federal agency eo nomine or against a
federal employee individually are dismissible for lack of jurisdiction.”) Additionally, Plaintiff
does not allege, and the record does not reflect, that Plaintiff exhausted administrative remedies
as required by the FTCA. See 28 U.S.C. § 2675(a). Accordingly, sovereign immunity bars
Plaintiff’s claims against the EEOC.
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B.
FOIA
Plaintiff alleges that the EEOC improperly withheld documents from him pursuant to
FOIA. Plaintiff does not seek injunctive relief based on this alleged failure. Rather, he seeks
damages in excess of one million dollars.
Plaintiff’s prayer for damages is fatal to his FOIA claim. As the Court noted in its prior
Opinion, monetary damages are not available under FOIA. See 5 U.S.C. § 552(a)(4)(B); see also
Ross v. United States, 460 F. Supp. 2d 139, 151 (D.D.C. 2006) (citing cases).
Furthermore, Plaintiff’s FOIA claim would fail even if the Court construed it as one for
injunctive relief. The record reflects that the EEOC complied with Plaintiff’s request to release a
copy of his charge file, making only mild redactions for deliberative process information.
Compare Doc. No. 53-4, with 5 U.S.C. § 552(b)(5) (exempting “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party”).
C.
Failure to State a Claim
For good measure, the Court notes that Plaintiff has otherwise failed to state cognizable
claims against the EEOC. Plaintiff’s claims are vague, meandering, and conclusory, and fail to
create a plausible inference that the EEOC has violated his legal rights.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS the EEOC’s Motion to Dismiss and
dismisses Plaintiff’s claims with prejudice.
December 26, 2012
Date
/s/
Alexander Williams, Jr.
United States District Judge
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