HARVEY v. HOLDER
Filing
25
OPINION and ORDER granting in part and denying in part 19 MOTION to Dismiss Complaint filed by ERIC H. HOLDER, JR. Plaintiff shall file an Amended Complaint in accordance with this Opinion no later than 8/29/2011. Signed by Judge Maurice B. Cohill on 8/15/2011. (sjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ZIMMERY HARVEY,
)
)
Plaintiff,
)
)
v.
)
Civil No. 10-268 Erie
)
ERIC H. HOLDER, JR. ATTORNEY
)
GENERAL OF THE UNTIED STATES )
OF AMERICA,
)
)
Defendant.
)
OPINION and ORDER
Plaintiff Zimmery Harvey brings this civil rights employment discrimination action under
Title VII of the Civil Rights Act of 1964 (42 U.S.c. § 2000(e) et seq.), and the First and Fifth
Amendments to the United States Constitution, alleging that he was subject to unlawful racial
and gender discrimination, as well as unlawful retaliation. Mr. Harvey originally commenced
this action on March 9, 2010, in the United States District Court for the Eastern District of
Pennsylvania. On November 9, 2010, venue in this case was transferred to the Western District
of Pennsylvania. Presently pending before this Court is Defendant's Motion to Dismiss. For the
reasons stated herein we will grant the motion in part and deny it in part.
I.
Background
Plaintiff Zimmery Harvey is an African-American male who has been employed by the
Bureau of Prisons since approximately 1990. Comp!.
~
10. He is currently a Lieutenant at
McKean Federal Correction Institute. Comp!.· 11.
Mr. Harvey alleges that his co-worker, Denise Hale, after being notified that Mr. Harvey
was subject to a wage garnishment, informed Mr. Harvey that he was subject to a wage
garnishment. Compl.
~~
14-15. Mr. Harvey "instructed Hale not to institute the wage
garnishment because he did not have any depend[ e ]nt children, and he also informed Hale that
his only son was grown up." Compl.
~
16. In response, Ms. Hale stated that Mr. Harvey "should
simply pay what he owes, regarding the wage garnishment." Compl.
were garnished. Compl.
~~
~
17. Mr. Harvey's wages
48, 54.
Mr. Harvey challenged the legitimacy of the wage garnishment, but Defendant did not
undertake any legal review of the notice of wage garnishment. Compl.
~
20. Mr. Harvey
alleges that "Caucasian employees have challenged the legitimacy of wage garnishment orders
that had been sent to Defendant in the past and those individual challenges were investigated
prior to keying in a garnishment." Compl.
~
19. Mr. Harvey alleges that Defendant "failed to
follow proper procedure by having general counsel review a notice of wage garnishment."
Compi.
~
21.
Mr. Harvey further alleges that no official court Order requiring the garnishment of his
wages was ever received by the United States, the Bureau of Prisons, or Ms. Hale. Compl.
Mr. Harvey complained to the Warden, but the situation was not remedied. Compl.
~
~
18.
22.
Mr. Harvey also alleges that he "was treated differently than Caucasian employees who
had requested administrative court leave to provide testimony in child support matters." Compl.
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29. Mr. Harvey had requested administrative court leave to appear for a deposition pursuant to
a State of Wisconsin child support matter, but his request was denied. Compl.
~
23-26. Mr.
Harvey alleges that Caucasian employees have been granted administrative court leave to
provide testimony in child support matters. Compl.
~
27. Mr. Harvey also alleges that he was
denied administrative leave in retaliation for engaging in protected activity. Compl.
2
~
28.
Mr. Harvey's Complaint alleges in Count One that he was discriminated against because
of his race and that he was subject to unspecified "derogatory, disparate and harassing treatment .
. . due to his race" that created a hostile work environment. CompI.
~~
31-35. In Count Two, he
alleges that he was discriminated against because of his gender and that he was subject to
unspecified "derogatory and harassing treatment ... due to his sex" that created a hostile work
environment.
CompI.'-~
36-40. In Count Three, Mr. Harvey alleges that Defendant retaliated
against him because he "engaged in protected activity by complaining about racial
discrimination." Compl.
~~
41-43.
In Count Four, he alleges that he Defendant retaliated against him for exercising his First
Amendment right to express his opposition to discriminatory conduct by denying administrative
leave, authorizing garnishment of his wages, and continuing to harass him. Compl.
~~
44-51.
Finally, in Count Five, Mr. Harvey alleges a Fifth Amendment violation based on
Defendant's failure to provide him with due process before depriving him of his "property and/or
liberty interest" in his salary. Compl.
II.
~~
52-57.
Standard of Review under 12(b)(6)
In ruling on a Rule 12(b)(6} motion for failure to state a claim upon which relief can be
granted a Court must '''accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief. '" Phillips v. County of Allegheny, 515 F.3d
224,233 (3d Cir. 2008) , quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.
2002), and citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,563, n.8 (2007). A valid
complaint requires only "a short and plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 "demands more than an unadorned, the
3
defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal,
_u
U.S. ----, ---, 129 S.Ct.
1937,1949 (2009), citing Twombly, 550 U.S. at 555.
"To survive a motion to dismiss a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949,
quoting Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 129 S.Ct. at 1949, citing Twombly, 550 U.S. at 556.
"Factual allegations of a complaint must be enough to raise a right to relief above the speculative
level." Twombly, 550 U.S. at 555. "This [standard] 'does not impose a probability requirement
at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234, quoting
Twombly, 550 U.S. at 556. Thus, "a plaintiffs obligation to provide the 'grounds' of his
'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of
the elements ofa cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted).
The Supreme Court in Iqbal explained that although a court must accept as true all of the
factual allegations contained in a complaint, that requirement does not apply to legal
conclusions; therefore, pleadings must include factual allegations to support the legal claims
asserted. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice." Id., citing Twombly, 550 U.S. at 555.
See also Phillips, 515 F.3d at 232 ("We caution that without some factual allegation in the
complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,'
but also the 'grounds' on which the claim rests,")(citing Twombly, 550 U.S. at 556 n. 3 (2007)).
Accordingly, to survive a motion to dismiss, a plaintiff must plead "factual content that allows
4
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 129 S.Ct. at 1949.
Finally, if court decides to grant a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the court must next decide
whether leave to amend the complaint must be granted. As explained in Phillips,: "We have
instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a
curative amendment, unless an amendment would be inequitable or futile." 515 F.3d 236, citing
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002)).
III.
Discussion
Defendant seeks dismissal ofMr. Harvey's Title VII claims claiming that we lack subject
matter jurisdiction because Mr. Harvey is ultimately asking this Court to determine that he did
not owe the child support at issue. We agree with Defendant's statement of the law; however as
explained below Mr. Harvey disavows that he seeks a determination of the validity of whether he
owed the child support.
Defendant also seeks dismissal of Mr. Harvey's Constitutional claims arguing that Title
VII provides the exclusive remedy for Mr. Harvey's claims. We agree and will dismiss these
claims. In addition, we will dismiss Mr. Harvey's deficient claims as explained below, but will
permit him the opportunity to file an amended complaint to address the deficiencies.
A. Race Discrimination Claims
Harvey alleges that he was discriminated against on the basis of his race in two ways:
Defendant failed to undertake a review of the notice of wage garnishment, and Defendant denied
Mr. Harvey his requested administrative court leave.
5
1. Wage Garnishment
Viewing Harvey's claim ofrace discrimination in a light most favorable to him, we find
the following factual assertions and reasonable inferences that can be drawn from such
assertions. Hale received a notice of wage garnishment concerning child support owed by
Harvey. Harvey challenged the legitimacy of the wage garnishment notice by explaining to Hale
that he did not have any dependent children, but he did have a son who was grown up. No
investigation occurred as to whether the notice was legitimate before the wage garnishment was
authorized.
Harvey's wages were garnished pursuant to the notice of wage garnishment. The
allegations in the Complaint show that Harvey's wages were in fact garnished pursuant to the
notice of wage garnishment. CompI.
~
48 (alleging that Defendant's conduct included
"authorization of an unverified wage garnishment order"),
~
52 (alleging that Defendant
"execut[ed] a wage garnishment order"). Harvey also claims he was deprived of a "property
and/or liberty interest" in his salary. Compl.
wages. Compl. p. 8,
~
~
53. In fact, he seeks reimbursement for lost
C.
The notice of wage garnishment was legitimate. Harvey never alleges that the notice of
wage garnishment was not legitimate, illegal, void, or otherwise insufficient; he only complains
that Defendant did not undertake a review of the notice when Harvey challenged it. Moreover,
his sole assertion challenging the wage garnishment notice was his statement that he did not
currently have any dependent children, just a grown-up son. Harvey supports the above
inferences in his brief in opposition to Defendant's motion to dismiss. Defendant argues that
Harvey does seek to establish that he did not owe the child support that the State of Wisconsin
said he did. Def. Br. 6. In response, Harvey disavows that he is attempting to prove that he did
6
not owe child support and labels Defendant's assertion to the contrary as "inaccurate." PI. Br.
Opp. 9. He also flatly states that his lawsuit "does not seek redress for any ... child support
related issues," and that "he is not seeking an adjudication before this Court regarding any child
support issue." Id.
Harvey in fact owed the child support. Harvey never alleges that he did not owe child
support. Instead, he told Hale at the time she informed him of the notice of wage garnishment
regarding child support, that he did not (currently) have any dependent children. It is common
sense that a parent may owe child,support even though the child is no longer dependent at the
time recovery of the back child support is sought. The reasonable inference from this is that at
some time in the past Harvey owed (but failed to pay) child support for his now-grown son. It
can be further reasonably inferred that the notice of wage garnishment concerns recovering this
unpaid child support. These inferences are strengthened by Harvey's factual assertion that he
had to attend a child support hearing in Wisconsin, indicating that legal proceedings concerning
Harvey's obligation to provide child support were current.
Viewed in favor of Harvey the relevant facts and reasonable inferences can now be seen
as follows. Defendant discriminated against Harvey by failing to undertake a review of the wage
garnishment notice when Harvey said he did have any dependent children. Harvey concedes that
the notice of wage garnishment was legitimate and thus Defendant properly authorized the wage
garnishment for child support Harvey actually owed.
In direct contradiction to the above, Harvey seeks to recover the wages that he claims
were "illegally" garnished. Compl. p. 8,
~
C. We see no way to provide such relief without
concluding that Harvey did not owe the child support identified in the notice of wage
garnishment. As Defendant correctly points out we are without jurisdiction to make such a
7
determination. Overman v. United States, 563 F.2d 1287 (8th Cir. 1997); Jones v. United States,
625 F.3d 827 (5th Cir. 2010). Since we are without jurisdiction to make such a determination
and since Harvey disavows that he wants us to make such a determination, we are left to wonder
exactly how Harvey was damaged under this claim.
Even if Harvey were to convince a jury that Defendant's conduct was taken based on his
race, rather than on the fact that the notice was legitimate, any damage award would have to be
nominal. Although Harvey claims punitive damages it is unlikely that such damages would be
awarded in a case where Defendant properly garnished his wages. Moreover, if punitive
damages were awarded they would also not amount to more than a nominal amount. With that
understanding of Harvey's race discrimination claim we will deny Defendant's motion to dismiss
for lack of subject matter jurisdiction. However, we will dismiss this claim without prejudice to
permit Harvey the opportunity to clarify that he is not seeking adjudication on, or redress for, any
child support issue, and to also clarify his claim for relief under this claim.
2. Request for Administrative Leave
Harvey requested administrative court leave to provide testimony in a child support
matter, but his request was denied. Harvey alleges that he "was treated differently than
Caucasian employees who had requested administrative court leave to provide testimony in child
support matters." Compl.
~
29. He alleges that when Caucasian employees had requested
administrative court leave to provide testimony in child support matters, their requests have been
granted. We find that Harvey has properly pleaded sufficient facts to state a claim.
B. Gender Discrimination Claim
We find that Harvey's allegation that he was discriminated against because of his gender
and that he was subject to unspecified "derogatory and harassing treatment ... due to his sex" is
8
a bare legal conclusion we need not credit. Moreover, Harvey's claim of gender discrimination
has no supporting factual assertions. Harvey is obligated to provide the "grounds" on which he
bases his entitlement to relief. Twombly, 550 U.S. at 555. Here, he has provided mere "labels
and conclusions, and a formulaic recitation of the elements of a cause of action," which the
Supreme Court has concluded is insufficient to survive a motion to dismiss.
Harvey's claim
of gender discrimination does not contain "sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550
U.S. at 570. Because this claim is not plausible on its face and fails to raise Harvey's right to
relief above the speculative level, we will dismiss it for failure to state a claim upon which relief
can be granted. Twombly, 550 U.S. at 555 ("Factual allegations of a complaint must be enough
to raise a right to relief above the speculative leveL")
C. Hostile Work Environment
Harvey's Complaint is devoid of factual assertions to support a hostile work environment
claim under either his race or gender discrimination claims. Viewed in a light most favorable to
Harvey he has asserted only two factual claims regarding Defendant's conduct that could
possibly support such a claim: the failure to undertake a legal review of the notice of wage
garnishment when Harvey stated he did not have dependent children at the time, and the failure
to approve Harvey's request for administrative court leave. This is insufficient to raise Harvey's
right to relief for a hostile work environment claim above the speculative level and we will
therefore dismiss Harvey's claims of a hostile work environment for failure to state a claim upon
which relief can be granted.
9
D. Retaliation Claim
Harvey's retaliation claim also presents a near bare legal conclusion we need not credit.
Harvey claims he was retaliated against for engaging in the protected activity of complaining
about racial discrimination. The retaliation occurred through Defendant denying administrative
leave and authorizing garnishment of his wages. As already explained the only legitimate
inference from the Complaint and Harvey's subsequent brief is that Defendant properly
authorized the garnishment of Harvey's wages. Therefore, the only retaliatory conduct Harvey
can assert is Defendant denying him administrative court leave.
However, his retaliation claim suffers from a more serious lack of factual support in that
he never states any details about his alleged complaints about racial discrimination. See Iqbal,
129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 577 ("Nor does a complaint suffice if it tenders
r
'naked assertion[ s devoid of 'further factual enhancement. "') The only complaint he could
have possibly made that we can discern from the Complaint is that Defendant illegally
discriminated against him based on his gender by failing to undertake a legal review of the wage
garnishment notice. He provides no other context on which to base his claim of retaliation. As
such, we conclude that Harvey has failed to provide the grounds for his claim to relief for his
retaliation claim. We will dismiss this claim without prejudice and permit Harvey the
opportunity to correct the deficiencies in an amended complaint.
E. Constitutional Claims
We will dismiss Harvey's Constitutional claims brought under the First and Fifth
Amendment because we agree with Defendant that Title VII provides the exclusive remedy for
job-related discrimination claims in federal employment. Brown v. General Services Admin.,
425 U.S. 820, 835 (1976).
10
In addition, these claims suffer from similar deficiencies as those mentioned above. In
particular, with regard to his First Amendment claim he fails to provide grounds for relief and
instead asserts mere "labels and conclusions, and a formulaic recitation of the elements of a
cause of action." Twombly, 550 U.S. at 555.
With regard to his Fifth Amendment due process claim, we would dismiss this claim in
light of Harvey's concession that he is not attacking the actual garnishment of his wages. Since
the wages were properly garnished, Harvey cannot establish that he was illegally deprived of his
property.
IV.
Conclusion
Accordingly, for the reasons state herein, we will enter an order granting in part and
denying in part Defendant's motion to dismiss. In addition we will order the dismissal of claims
as stated above, and permit the filing of an amended complaint in accordance with this Opinion.
Maurice B. Cohill, Jr.
Senior United States District Court Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ZIMMERY HARVEY,
)
)
Plaintiff,
)
v.
)
)
Civil No. 10-268 Erie
)
ERIC H. HOLDER, JR. ATTORNEY
)
GENERAL OF THE UNTIED STATES )
OF AMERICA,
)
)
De~ndanL
)
ORDER
AND NOW, to-wit, this IS
,;;
day of
4,
2011, for the reasons stated in the
accompanying opinion, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. Defendant's Motion to Dismiss (ECF No. 19) is denied in part, and granted in part, as
follows:
a. The motion to dismiss Plaintiff's claims based on lack of subject matter
jurisdiction is DENIED as moot because Plaintiff concedes he is not seeking a
determination that he did not owe child support pursuant to the Wisconsin's
notice of wage garnishment; and
b. The motion to dismiss Plaintiff's Constitutional claims is GRANTED.
2. Plaintiff's Gender Discrimination Claim and Hostile Work Environment Claims are
hereby dismissed for failure to state a claim upon which relief can be granted.
3. Plaintitf's Race Discrimination Claim alleging that Defendant failed to investigate
when Plaintiff raised the challenge to the notice of wage garnishment because he is
black is dismissed without prejudice.
12
4. Plaintiffs Race Discrimination Claim alleging that he was treated differently than
Caucasian employees who had requested administrative court leave to provide
testimony in child support may proceed. However, in light of our dismissal of certain
claims and our determination that Plaintiff must file an amended complaint, we direct
Plaintiff to reassert this claim in an amended complaint.
IT IS FURTHER ORDERED THAT Plaintiff shall file an Amended Complaint in
accordance with the Opinion accompanying this Order no later than August 29,2011.
1t1~
6. ~~ ,\I.
Maurice B. Cohill, Jr.
Senior United States District Judge
13
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