Noel, Ess v. Huston
Filing
11
MEMORANDUM OPINION (c/m to Plaintiff 11/21/13 sat). Signed by Chief Judge Deborah K. Chasanow on 11/21/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SHEILA NOEL
:
v.
:
Civil Action No. DKC 13-1412
:
ANN HUSTON
:
MEMORANDUM OPINION
Presently pending and ready for resolution is an unopposed
motion filed by the government to substitute the United States
as
the
sole
defendant
and
to
subject matter jurisdiction.
dismiss
the
(ECF No. 5).
case
for
lack
of
The relevant issues
have been briefed and the court now rules pursuant to Local Rule
105.6, no hearing being deemed necessary.
For the reasons that
follow, the motion will be granted.
I.
Background
Plaintiff Sheila Noel, proceeding pro se, commenced this
action on March 15, 2013, by filing a complaint in the District
Court of Maryland for Montgomery County against Defendant Ann
Huston.
According
to
the
complaint,
Plaintiff
suffered
“personal, physical, [and] emotional injury [Defendant] caused
at work” related to “harassment on the job and stress caused by
injury on [August 10, 2012].”
(ECF No. 2, at 1).
seeks damages in the amount of $30,000.
Plaintiff
Ms.
Huston
government
Plaintiff
filed
served
of
a
on
notice
Ms.
and
Institutes
was
Huston
Health,
of
April
15.
removal,
are
that
On
asserting
employees
Plaintiff
May
of
that
the
seeks
10,
the
both
National
money
damages
resulting from alleged conduct by Defendant occurring within the
scope
of
2679(d),
United
her
the
employment,
case
States
is
and
and
that,
properly
is
pursuant
deemed
removable.
an
On
to
28
action
the
U.S.C.
§
against
same
the
date,
the
government filed a motion to substitute the United States as the
sole defendant and to dismiss the complaint for lack of subject
matter jurisdiction.
Plaintiff
that
a
(ECF No. 5).
potentially
The clerk provided notice to
dispositive
motion
was
pending
against her, but Plaintiff did not respond.
II.
Motion to Substitute
The Government asserts that the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671-80 (“FTCA”), requires substitution of
the United States as the sole party defendant for Plaintiff’s
tort
claims.
The
FTCA
immunizes
federal
employees
from
liability for “negligent or wrongful act[s] or omission[s] . . .
while acting within the scope of [their] office or employment.”
28 U.S.C. § 2679(b)(1).
When a federal employee is sued for
tortious conduct, the United States Attorney for that district,
acting on behalf of the Attorney General, must certify whether
the
employee
was
acting
within
2
the
scope
of
his
or
her
employment
at
2679(d)(1).
the
time
of
the
alleged
act.
28
U.S.C.
§
If the United States Attorney certifies that the
employee acted within the scope of employment, then (1) the
United States is substituted as the sole defendant; (2) suits
filed in state court must be removed to federal court; and (3)
the plaintiff may sue the United States only in accordance with
the FTCA.
See id.; see also Maron v. United States, 126 F.3d
317, 321 (4th Cir. 1997).
Here,
the
United
States
Attorney
for
the
District
of
Maryland has certified that Ms. Huston was acting within the
scope of her employment for the National Institutes of Health at
the time of the alleged conduct (ECF No. 10), and Plaintiff has
not challenged this assertion.
See Gutierrez de Martinez v.
Drug Enforcement Admin., 111 F.3d 1148, 1155 (4th Cir. 1997) (“If
the
plaintiff
does
not
come
certification is conclusive”).
forward
with
any
evidence,
the
Accordingly, Ms. Huston will be
dismissed and the motion to substitute the United States as the
sole defendant will be granted.
III. Motion to Dismiss
A.
Standard of Review
Motions to dismiss for lack of subject matter jurisdiction
are governed by Federal Rule of Civil Procedure 12(b)(1).
plaintiff
bears
the
burden
of
proving
jurisdiction exists in federal court.
3
that
subject
The
matter
See Evans v. B.F. Perkins
Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir.
1999).
In
deciding
evidence
outside
such
the
a
motion,
pleadings”
to
the
court
determine
jurisdiction over the case before it.
“may
consider
whether
it
has
Richmond, Fredericksburg
& Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991); see also Evans, 166 F.3d at 647.
a
Rule
12(b)(1)
motion
“only
if
the
The court should grant
material
jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.”
B.
Richmond, 945 F.2d at 768.
Analysis
The government argues that Plaintiff’s tort claims should
be
dismissed
remedies.
due
to
her
failure
to
exhaust
administrative
Under the FTCA, the plaintiff must first present a
tort claim to the relevant government agency before an action
can
be
filed
jurisdictional
in
and
court.
cannot
The
be
exhaustion
waived.
See
requirement
Plyler
v.
is
United
States, 900 F.2d 41, 42 (4th Cir. 1990).
The government submits the declaration of Kara Hicks, an
attorney in the Office of General Counsel, Department of Health
and Human Services, asserting that the general counsel’s office
“maintains in a computerized database a record of administrative
tort claims filed with the Department,” that Ms. Hicks “caused a
search of the . . . database to be conducted,” and that she
“found no record of an administrative tort claim presented to
4
the Department by or on behalf of Shelia Noel.”
Plaintiff does not challenge this evidence.
(ECF No. 5-2).
Accordingly, the
record establishes that she has failed to exhaust administrative
remedies under the FTCA with respect to any tort claim.
Insofar as Plaintiff intended to raise claims of employment
discrimination under Title VII of the Civil Right Act of 1964,
42
U.S.C.
§
2000(e)
et
seq.
(“Title
VII”),
the
government
contends that she has also failed to exhaust her administrative
remedies.
Under
Title
VII,
a
federal
employee
must
file
a
formal complaint with the EEOC within fifteen days of receiving
the right to do so.
formal
complaint
29 C.F.R. § 1614.106(b).
within
the
fifteen-day
Failure to file a
period
constitutes
a
failure to exhaust administrative remedies and is grounds for
dismissal.
2005);
See Moret v. Harvey, 381 F.Supp.2d 458, 467 (D.Md.
Ringgold
v.
Napolitano,
Civ.
No.
CCB-13-210,
2013
WL
4852246, at *3 (D.Md. Sept. 10, 2013).
In support of its claim in this regard, the government
attaches
the
Employment
Opportunity
declaration
Opportunity
and
of
Karen
Specialist
Diversity
in
Management,
Fitzpatrick,
the
Office
Division
of
an
Equal
of
Equal
Complaints
Management and Resolution, National Institutes of Health, United
States Department of Health and Human Services.
Ms. Fitzpatrick
asserts that Plaintiff “has filed two (2) active, EEO complaints
(one formal and one informal), in which she alleges that she has
5
experienced discrimination and harassment in the workplace, and
in which she names her supervisor, Ann Huston . . . as [a]
Responsible Management Official[.]”
(ECF No. 5-4 ¶ 3).
The
first of these complaints was filed on December 15, 2011, and
“is
currently
under
investigation
filed by [Plaintiff].”
(Id.).1
due
to
several
amendments
The second, according to Ms.
Fitzpatrick, “is a pre-complaint . . . which was filed on March
4, 2013, and is currently closed, pending [Plaintiff’s] election
to file a formal complaint,” which she has not yet done.
(Id.
at ¶ 4).
To the extent that Plaintiff intended to allege employment
discrimination under Title VII, the record demonstrates that she
has failed to exhaust administrative remedies with respect to
such claim.
III. Conclusion
For the foregoing reasons, the government’s motion will be
granted.
A separate order will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
1
That complaint, filed before the alleged injury on August 10, 2012,
that is the subject of this suit, is unrelated.
6
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