Cruthirds v. Miller et al

Filing 41

ORDER GRANTING 31 Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment, DENYING 15 Plaintiff's Motion for Summary Judgment, DENYING 16 Plaintiff's Motion for Summary Judgment, and DENYING 19 Plain tiff's Motion for Joinder. This action is dismissed in its entirety and the clerk is directed to enter judgment and close the file. Signed by US District Judge Terrence W. Boyle on 2/3/2015. Copy mailed to pro se plaintiff, via US Mail, to 3509 Kennicot Road, Fayetteville, NC, 28311. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-849-BO
SHEILA Y. CRUTHIRDS,

)
)

Plaintiff,

)
)
v.
)
)
KAREN MILLER, Division Chief Child,
)
Youth School Services/Directorate Family )
Morale, Welfare and Recreation, and
)
)
JOHN M. MCHUGH, Secretary,
Department of the Army,
)
)
Defendants. )

ORDER

This cause comes before the Court on defendants' motion to dismiss, or in the alternative
for summary judgment. Plaintiff has responded, and the matter is ripe for review. Also pending
are plaintiffs motions for summary judgment, default judgment, and for joinder. For the reasons
discussed below, defendants' motion is granted and this action is dismissed.

BACKGROUND
Plaintiff was formerly employed as a Supervisory Program Specialist at Cook Child
Development Center at Fort Bragg, North Carolina. Plaintiff alleges in her complaint that Karen
Miller, Division Chief of Child, Youth School Services, breached a negotiated settlement
agreement signed by plaintiff and Miller, subjected plaintiffto a hostile work environment,
intentionally retaliated against her, and discriminated against her based on her race. Plaintiff
further alleges that Miller caused the Fort Bragg Garrison Commander to have plaintiff
permanently barred from re-entering Fort Bragg and Camp McKall, and that Miller's intentional
actions caused plaintiffs employment attorney to withdraw from representation.

Construing plaintiffs prose complaint liberally, the Court finds that plaintiff has brought
an action under Title VII ofthe Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq.,
for employment discrimination, specifically race discrimination, hostile work environment, and
retaliation for engaging in protected activities. See 42 U .S.C. § 2000e-16. Plaintiff also appears
to allege a state law claim for intentional infliction of emotional distress against defendant
Miller. Defendants have moved to dismiss plaintiff's complaint pursuant to Rules 12(b)(1) and
(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can been
granted. Fed. R. Civ. P. 12(b)(1);(6). Defendants have moved alternatively for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed five
responses in opposition to defendants' motion.
DISCUSSION
I. LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)( 1) authorizes dismissal of a claim for lack of
subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the
burden ofprovingjurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642,
647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment." Richmond,

Fredericksburg & Potomac R.R Co. v. United States, 945 F.2d 765,768 (4th Cir. 1991). To this
end, "the nonmoving party must set forth specific facts beyond the pleadings to show that a
genuine issue of material fact exists." !d. (citing Trentacosta v. Frontier Pacific Aircraft Indus.,
813 F.2d 1553, 1558-59 (9th Cir. 1987)). The movant's motion to dismiss should be granted if

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the material jurisdictional facts are not in dispute and the movant is entitled to prevail as a matter
of law. !d.
A Rule 12(b)(6) motion tests the legal sufficiency ofthe complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Facial plausibility means that the facts
pled "allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged"; mere recitals of the elements of a cause of action supported by conclusory
statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Defendants and plaintiff have filed extrinsic evidence in support of their arguments for
and against dismissal. The Court may consider documents referred to in the complaint and relied
upon by a plaintiff in bringing an action without converting a Rule 12(b)( 6) motion to one for
summary judgment. See e.g. Abadian v. Lee, 117 F. Supp. 2d 481,485 (D. Md. 2000). Because
the Court has considered only that extrinsic evidence which is specifically mentioned in or relied
upon in plaintiff's complaint, it need not convert defendants' Rule 12(b)(6) motion to one for
summary judgment. 1
II. ANALYSIS
A. PROPER DEFENDANT FOR TITLE VII CLAIMS
Plaintiff complains of employment actions taken while she was a federal employee. A
federal employee may file a civil action following notice of final action by or the passage of 180
1

The Court would note, however, that plaintiff has received notice pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). [DE 33].
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days from the filing of a charge with the Equal Employment Opportunity Commission. 42
U.S.C. § 2000e-16(c). The defendant in such action shall be "the head ofthe department,
agency, or unit, as appropriate [.]"!d. Plaintiff alleges that Miller was the Division Chief of
Child Youth School Services; Miller was not the head of the appropriate department, unit, or
agency. See e.g. Gardner v. Gartman, 880 F.2d 797, 798 (4th Cir. 1989) (employee at Marine
Corps Air Station at Cherry Point alleging Title VII claims was required to name the Secretary of
the Navy as defendant.). Plaintiffs Title VII claims are proper only against defendant McHugh,
Secretary, Department of the Army and are dismissed against defendant Miller.
B. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Title VII requires that a federal employee exhaust her administrative remedies prior to
filing suit in federal court. Zografov v. VA. Med. Ctr., 779 F.2d 967, 968 (4th Cir. 1985). A
federal employee must contact an Equal Employment Opportunity (EEO) counselor within fortyfive days of the alleged discrimination prior to filing a complaint, and the EEOC must dismiss a
complaint that fails to comply with this requirement unless other circumstances apply. 29 C.F.R.
§§ 1614.105(a)(1); 1614.107(a)(2).
Plaintiff in her complaint states that Miller has been retaliating against her "from June 24,
2011 and including the transfer to Cook Child Development Center on January 6, 2012."
Plaintiff further states that during this time Miller created a hostile work environment and
discriminated against plaintiff. Plaintiff contacted an EEO official on August 20, 2012,
regarding alleged discrimination and hostile work environment. [DE 32-9]. Plaintiffs claims
for discrimination that occurred in 2011 were dismissed by the EEOC for failure to contact an
EEO official within forty-five days of the alleged incident as required. !d.

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Plaintiff has not demonstrated that she contacted an EEO counselor within forty-five days
of any specific incidence of discrimination during 2011. Because "a failure by the plaintiff to
exhaust administrative remedies concerning a Title VII claim deprives the federal courts of
subject matter jurisdiction over the claim," Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th
Cir. 2009), plaintiffs hostile work environment, discrimination, and retaliation claims must be
dismissed for lack of subject matter jurisdiction. See also Steele v. Schafer, 535 F.3d 689,693
(D.C. Cir. 2008) ("a court may not consider a discrimination claim that has not been exhausted").
C. REMAINING CLAIMS
Plaintiffs remaining claims, even liberally construed, fail to allege more than
"unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts. v. JD.

Assocs. Ltd., 213 F.3d 175, 180 (4th Cir. 2000). Though she alleges that defendants have
breached the negotiated settlement agreement, she has not provided the Court with sufficient
factual support for it to draw the reasonable inference that defendants are liable for the alleged
misconduct. Iqbal, 556 U.S. at 678. The negotiated settlement agreement provided that a lateral
transfer to Cook Child Development Center (CDC) would be arranged if both plaintiff and the
Cook CDC director were in agreement, as would be indicated by an email to Miller. [DE 32-2].
Plaintiff emailed Miller on February 24, 2012, to confirm her desire to be laterally transferred to
Cook CDC. [DE 32-3]; see also [DE 1-2]. While plaintiff complains that she was denied an
appropriate transfer pursuant to the agreement, she further notes that "the settlement agreement
didn't reveal an implied promise to reassign" her. [DE 1-1 at 3]. Thus, plaintiff has failed to
sufficiently allege a term of the negotiated settlement that defendants have breached.

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D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Finally, insofar as the Court could construe2 a state law claim for intentional infliction of
emotional distress, "[f]ederal employees enjoy absolute immunity from liability for torts
committed within the scope oftheir employment." Groshans v. England, No. CIV.A. 01-1438A, 2002 WL 32605744, at *4 (E.D. Va. Mar. 28, 2002) aff'd, 51 F. App'x 450 (4th Cir. 2002);

see also 28 U.S.C. § 2679(b)(l). Plaintiff has not alleged that defendant Miller was acting in her
personal capacity when she took the allegedly discriminatory actions against plaintiff, and this
claim is therefore properly dismissed.

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Ill. PLAINTIFF'S MOTIONS
Plaintiffs motions for summary judgment, default judgment, and for joinder are denied.
In light of the foregoing discussion, plaintiffs request that discovery not be conducted and the
case proceed directly to trial is without merit and is denied. Default judgment pursuant to Rule
55 of the Federal Rules of Civil Procedure is improper as default has not been entered against
defendants. Further, defendants are not in default as they have filed a motion pursuant to Rule
12, and such motion "must be made before pleading if a responsive pleading is allowed." Fed.
R. Civ. P. 12(b). Finally, plaintiffhas not established a basis for joinder pursuant to Rule 19 of
the Federal Rules of Civil Procedure. Moreover, the Court stayed each of plaintiffs motions
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Pro se pleadings should be construed liberally. Erickson v. Pardus , 551 U.S. 89, 94 (2007).
Defendants did not refer to a claim for intentional infliction of emotional distress in their
motion to dismiss, though they did seek dismissal of plaintiffs complaint in its entirety.
Ordinarily, notice is required prior to sua sponte dismissal of a plaintiffs claims. See Saifullah
v. Johnson, 948 F.2d 1282 (4th Cir. 1991) (unpublished). Here, however, plaintiffhas received a
Roseboro notice that judgment may be entered against her and she has filed five responses to
defendants' motion. Because only the Court's very liberal construction of plaintiffs complaint
results in a finding that she may have raised a claim for infliction of emotional distress, plaintiff
has had adequate notice ofthe effects of motions under Rule 12 and 56 ofthe Rules of
Procedure, and has in fact thoroughly responded to defendants' motion, the Court finds that sua
sponte dismissal of plaintiffs purported emotional distress claim is appropriate.
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pending its entry of a scheduling order. [DE 25]. As dismissal of this action is appropriate, a
scheduling order will not be entered and plaintiffs motions are denied.

CONCLUSION
As discussed above, defendants' motion to dismiss or in the alternative for summary
judgment [DE 31] is GRANTED, plaintiffs motion for summary judgment, defaultjudgment,
and joinder [DE 15, 16 & 19] are DENIED, and this action is DISMISSED in its entirety. The
clerk is DIRECTED to enter judgment accordingly and to close the file.

SO ORDERED, this..]_ day of February, 2015.

ERRENCE W. BOYLE
UNITED STATES DISTRICT J

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