Johnson v. Mabus

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATION 20 . The Court ADOPTS the Report and Recommendation of the Magistrate Judge as the Order of the Court (Dkt. No. 20) and GRANTS IN PART AND DENIES IN PART Defendant's mot ion to dismiss (Dkt. No. 6). claims of retaliation based on Plaintiffs 2012 EEO complaint are DISMISSED WITHOUT PREJUDICE. The motion to dismiss or alternatively for summary judgment is otherwise DENIED WITHOUT PREJUDICE. Signed by Honorable Richard M Gergel on 7/18/2018. (kric, ) Modified on 7/18/2017 to edit text (kric, ).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Patricia Johnson,
Plaintiff,

v.
Ray Mabus, Secretary of the Navy ,
Defendant.

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Civil Action No. 2: 16-2073-RMG

ORDER AND OPINION

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that Defendant' s motion to dismiss be granted in part and denied in part.
For the reasons set forth below, the Court adopts the Report and Recommendation.
I.

Background

Plaintiff is a 58-year-old female employed as an administrative specialist at the Navy' s
Space and Naval Warfare Systems Center Atlantic ("SPAWAR"). Plaintiff has been employed
with SPA WAR at the Southeast Regional Office in North Charleston, South Carolina since 1999.
Plaintiff alleges that, during the course of her employment with SP AW AR, the she became aware
of a large discrepancy in pay between herself and younger co-workers who were assigned to the
same work. She filed a complaint with the SP AW AR Equal Employment Opportunity ("EEO")
Office regarding this pay discrepancy in 2005 , and later that year, SPAWAR remedied the issue
through a settlement agreement.
Plaintiff alleges that in 2007, when SP AW AR changed its performance and pay systems,
she again received a lower salary than younger co-workers did, despite her successful performance
ratings. In addition to being denied equal pay, the plaintiff alleges that she has continually been
denied the opportunity to advance within the Post Award Admin Branch of the Contract Division

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at SP AW AR, and that, although the plaintiff is a military veteran with over 25 years of civil
service, she has never been granted any of the promotions that she has applied for within the
department. In October 2012, Plaintiff received a performance evaluation that reflected a lower
performance award than similarly situated younger employees. She alleges that at that time she
became aware of SP AW AR management actions that reflected an ongoing policy of hiring
younger employees into the Contract Division at a higher salary than Plaintiffs for the
performance of the same work, with the aim of lowering the average age of employees in the
Division. On November 15, 2012, Plaintiff was reassigned to a lower-level position within the
Task Order Branch. Although the plaintiff did not suffer a change in salary or benefits, she alleges
that assignment was a demotion because of the loss of possibility of promotion and she alleges she
was demoted in retaliation for her prior EEO complaint.
Plaintiff filed a formal complaint of discrimination with SP AW AR' s EEO Office on May
8, 2013, which alleged age discrimination and retaliation. The agency thereafter conducted an
investigation.

On June 23 , 2014, Plaintiff requested a hearing and decision from an Equal

Employment Opportunity Commission ("EEOC") Administrative Judge. On June 10, 2015, the
defending agency moved for summary, which the Administrative Judge granted on March 25 ,
2016. The Department of the Navy Office issued its final order on May 10, 2016, which
implemented the Administrative Judge' s decision to dismiss Plaintiffs discrimination complaint.
Plaintiff then filed the present action against Defendant on June 21, 2016, alleging
violations of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment
Act. On September 13, 2016, Defendant moved to dismiss the complaint. On June 1, 2017, the
Magistrate Judge recommending granting in part and denying in part the motion to dismiss.
Plaintiff filed no objections to the Report and Recommendation.

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II.

Legal Standard

A.

Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de nova determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id. Where the plaintiff fails to file any specific objections, "a district court need not
conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation," see Diamond v. Colonial Life & Accident

Ins. Co., 416 F .3d 310, 315 (4th Cir. 2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the recommendation of the Magistrate Judge, Camby

v. Davis, 718 F.2d 198 (4th Cir. 1983).
B.

Motion to Dismiss Under Rule 12(b)(l)
A motion to dismiss for lack of subject-matter jurisdiction filed under Rule 12(b)(l) of the

Federal Rules of Civil Procedure challenges the jurisdiction of a court to adjudicate the matter
before it. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). A challenge to subject-matter
jurisdiction may contend either 1) that the complaint fails to allege facts sufficient to establish
subject matter jurisdiction or 2) "that the jurisdictional allegations of the complaint [are] not true."
Adams v. Bain, 697 F.2d 1213 , 1219 (4th Cir. 1982). Where the sufficiency of the jurisdictional

allegations in the complaint is challenged facially, "the facts alleged in the complaint are taken as
true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject

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matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (2009). If, however the defendant
contends "that the jurisdictional allegations of the complaint [are] not true," the plaintiff bears the
burden to prove facts establishing jurisdiction and the district court may "decide disputed issues
of fact." Id. In that case, because the plaintiffs allegations are not presumed true, "the court
should resolve the relevant factual disputes only after appropriate discovery." 24th Senatorial
Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 629 ·(4th Cir. 2016).

And where "the

jurisdictional facts and the facts central to a tort claim are inextricably intertwined," so that a
challenge to the truth of the jurisdictional facts indirectly challenges the plaintiffs claims on the
merits, "the trial court should ordinarily assume jurisdiction and proceed to the intertwined merits
issues." Kerns, 585 F.3 at 193 .

C.

Motion to Dismiss Under 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if

the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the
allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled
to relief. "' Republican Party ofN C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)(quotation marks
and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all
facts alleged in the complaint and the existence of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mkts., Inc. v. JD. Assocs. Ltd. P 'ship, 213 F.3d 175, 180 (4th
Cir. 2000). However, while the Court must accept the facts in a light most favorable to the nonmoving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or
arguments." Id.

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To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the requirement of plausibility does not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the

pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.
III.

Discussion
Defendant's motion to dismiss raises three arguments. First, Defendant argues hostile

work environment claims should be dismissed for failure to exhaust administrative remedies. The
Court agrees with the Magistrate Judge that argument is moot because Plaintiff confirms in her
opposition that she has not made a hostile work environment claim.
Second, Defendant argues Plaintiff failed to exhaust administrative remedies regarding her
that she was assigned to a lower-level position within the Task Order Branch on November 15,
2012 in retaliation for her 2012 EEO complaint. The Magistrate Judge recommends granting
Defendant's motion to dismiss for lack of subject-matter jurisdiction regarding that claim and the
Court agrees. Plaintiffs EEO complaint, dated May 8, 2013, does not present that claim, and that
claim is not mentioned in the notice of acceptance sent to Plaintiffs attorney on July 24, 2013.
(Dkt. Nos. 1-2, 6-2.) Exhausting the administrative remedies is a statutory prerequisite to invoking
the jurisdiction of this court in a Title VII action. Jones v. Calvert Group, Ltd., 551 F.3d 297, 300301 (4th Cir. 2009). In considering the exhaustion of administrative remedies, the allegations in
the EEOC charge determine the scope of a plaintiffs right to file a federal lawsuit. Id. at 300. The
Court therefore dismisses without prejudice Plaintiffs claim that she assigned to a lower-level
position on November 15, 2012 in retaliation for her 2012 EEO complaint.
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Third, Defendant argues he should be granted summary judgment on Plaintiffs remaining
claims. The Magistrate Judge recommends denying Defendant's motion because discovery has
not yet occurred in this matter. The Court agrees. Defendant does not argue the complaint fails
to allege sufficient facts to state a claim; rather, he argues for summary judgment based on
evidence from prior EEO proceedings. But those materials are outside the pleadings, and "the
district court cannot go beyond these documents on a Rule 12(b)( 6) motion; if it does, it converts
the motion into one for summary judgment. Such conversion is not appropriate where the parties
have not had an opportunity for reasonable discovery." E.I. du Pont de Nemours & Co. v. Ko/on
Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (citation omitted). There has been no discovery in
this case, and materials from the underlying administrative action cannot substitute for discovery
because litigation of a matter in federal court following a federal agency's investigation and
decision on the same matter is a de novo proceeding. See Chandler v. Roudebush, 425 U.S. 840
(1976). The Court therefore adopts the Report and Recommendation and denies Defendant's
motion to dismiss for failure to state a claim or alternatively for summary judgment.
IV.

Conclusion

For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge as the Order of the Court (Dkt. No. 20) and GRANTS IN PART AND DENIES
IN PART Defendant's motion to dismiss (Dkt. No. 6). Claims ofretaliation based on Plaintiffs

2012 EEO complaint are DISMISSED WITHOUT PREJUDICE. The motion to dismiss or
alternatively for summary judgment is otherwise DENIED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge

r&

2017
July
Charleston, South Carolina
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