Waggoner v. Donley

Filing 26

ORDER granting in part and denying in part 21 Motion to Dismiss for Lack of Jurisdiction. Signed by Honorable Timothy D. DeGiusti on 2/13/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

GWENDOLYN WAGGONER,
Plaintiff,
vs
DEBORAH LEE JAMES,1 Secretary,
Department of the Air Force,
Defendant.

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NO. CIV-13-1133-D

ORDER
Before the Court is Defendant’s motion to dismiss Plaintiff’s Complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) and (h)(3), F. R. Civ. P. [Doc. No. 21].
Plaintiff has filed a response to this motion [Doc. No. 23], and Defendant has filed a reply
[Doc. No. 25].
The underlying premise of Defendant’s motion is the jurisdictional requirement of
administrative exhaustion for Plaintiff’s claims under Title VII of the Civil Rights Act of
1964 as amended, 42 U.S.C. § 2000e et seq. See Shikles v. Sprint/United Management Co.,
426 F.3d 1304, 1317 (10th Cir. 2005). The sole basis for jurisdiction alleged in Plaintiff’s
Complaint is an EEOC decision and right-to-sue notice issued in an administrative
proceeding challenging Plaintiff’s first removal from employment with the Department of
the Air Force in May, 2009. Defendant contends that any claim of Plaintiff based on her first

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Pursuant to Fed. R. Civ. P. 25(d), Secretary Deborah Lee James is automatically substituted as the named
defendant, replacing retired Secretary Michael P. Donley.

termination is moot because she was subsequently reinstated to her position with full back
pay and benefits, and therefore, no live controversy exists with respect to this claim.
Defendant quotes a portion of the EEOC’s decision attached to Plaintiff’s Complaint. During
the administrative process, however, Plaintiff’s discrimination claim based on her initial
termination was not found to be moot but was addressed on its merits.
The EEOC decision summarized the administrative proceedings as follows:
A hearing was held and thereafter an MSPB Administrative
Judge (AJ) issued an initial decision dismissing Petitioner’s
appeal as moot. The AJ found that the parties had engaged in
settlement discussions and the Agency had unilaterally
withdrawn the removal action and had reinstated Petitioner to a
position in the same grade and duty location as she encumbered
previously. Her reinstatement was effective March 10, 2011.
Petitioner also received full back pay and benefits. The AJ
indicated however, that generally such a complaint would be
deemed automatically moot; however, since Petitioner requested
compensatory damages, a hearing was held.
See EEOC Decision dated March 15, 2013, attached to Plaintiff’s Complaint [Doc. No. 1]
at p.10 (ECF numbering). After the hearing, the administrative judge proceeded to find
Plaintiff’s removal was not based on discrimination or reprisal, and upon review, the EEOC
concurred. Id. at pp.9, 10. Plaintiff makes clear in this case that she is pursuing her Title VII
claims and seeking compensatory damages for pain and suffering resulting from her initial
termination. See Complaint [Doc. No. 1] at p.4, ¶ 11; Plaintiff’s Response Brief [Doc.
No. 23] at p.2. Accordingly, to the extent Plaintiff seeks compensatory damages for race,
color, and sex discrimination and/or retaliation under Title VII in connection with the initial
termination of her employment, the case is not moot.
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Plaintiff also alleges race, color, and sex discrimination and reprisal for prior EEOC
activity resulted in the Department’s failure to promote her, in placing her in a hostile work
environment, and in a second termination of her employment in March, 2012. But Plaintiff
has failed to allege in her Complaint or show by any attachments thereto, jurisdictional facts
regarding any claim other than her initial termination. In other words, Plaintiff has failed to
show that she has exhausted administrative remedies with respect to the alleged failure to
promote her, an alleged hostile work environment, and the second termination of her
employment. Plaintiff may not bring a discrimination suit “based upon claims that were not
part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter.”
Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165
F.3d 1321, 1326 (10th Cir. 1999). And each discrete incident of discriminatory or retaliatory
action by an employer “constitutes its own ‘unlawful employment practice’ for which
administrative remedies must be exhausted.” Martinez v. Potter, 347 F.3d 1208, 1210 (10th
Cir. 2003) (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-13 (2002)).
Therefore, to the extent the Complaint asserts Title VII claims based on any employment
action other than Plaintiff’s initial 2009 removal from employment, the claims must be
dismissed for lack of subject matter jurisdiction.
In accordance with the foregoing, Defendant’s motion to dismiss [Doc. No. 21] is
GRANTED in part and DENIED in part. Defendant’s motion to dismiss Plaintiff’s Title VII
claims for race, color, and sex discrimination and retaliation relating to the initial termination
of Plaintiff’s employment is DENIED. In all other respects, Defendant’s motion to dismiss
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Plaintiff’s Complaint is GRANTED, and all other Title VII claims are dismissed without
prejudice to refiling.
IT IS SO ORDERED this 13th day of February, 2014.

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