Lawson v. Lew

Filing 13

ORDER DENYING 10 Amended Motion to Dismiss for Lack of Jurisdiction, or Motion for Summary Judgment. Signed by Judge Sam Sparks. (jf)

Ffl
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

17

SEP 25

ED
4fl fl:

28

COURT

TEXAS
LI

LAWSON P. ROBERTS,

Plaintiff,
Case No. A-16-CA-1272-SS

-vs-

STEVEN MNUCHIN, Secretary of Treasury,
Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Defendant Steven Mnuchin (Defendant)'s Amended Motion to Dismiss, or, in the
alternative, Motion for Summary Judgment [#10], Plaintiff Lawson P. Roberts (Plaintiff)' s Response
[#11] in opposition, and Defendant's Reply [#12] in support. Having reviewed the documents, the

governing law, and the file as a whole, the Court enters the following opinion and order DENYING

the motion to dismiss, or, in the alternative, Motion for Summary Judgment.

Background
This case concerns an employment dispute. Plaintiff is an employee of the Internal Revenue

Service (IRS), which falls under the Department of the Treasury. Suing Steven Mnuchin, in his
official capacity as Secretary of the Treasury, Plaintiff alleges the Department of the Treasury (the

Treasury) retaliated against and harassed him for his participation in multiple Equal Employment

Opportunity (EEO) conflict resolution processes.
As an initial matter, Plaintiff alleges he was improperly charged with being absent without

official leave (AWOL) and suspended for fifteen days for attending a mediation where he

J

represented a fellow employee in the summer of 2015. Compl. [#1] at 4. In response to the alleged
retaliation, Plaintiff filed an EEO pre-complaint on his own behalf and agreed to mediate with the
IRS. Id. at 5. Due to an illness, Plaintiff's attorney requested the mediation be held at her office

rather than the IRS offices. Id. The EEO counselor agreed to hold the mediation at the office of

Plaintiff's attorney on October

1, 2015,

at 9:00 a.m. Id. at 6.

Although Plaintiff previously informed his managers of the mediation, one of Plaintiff's
managers did not attempt to notify Plaintiff that he "would not be allowed travel time" until the
afternoon of September 30, 2015.1 Id. Plaintiff was unavailable and did not learn he would not be
granted travel time for the mediation. Id. at 6-7. Thus, Plaintiff attended the October 1St mediation
and only learned he would not be granted travel time when he returned to work following the

mediation's conclusion. Id. at 7. According to Plaintiff, "[w]hen Plaintiff refused to use his own
time" to cover the travel time, he was presented with a second AWOL charge and a form indicating
he "violat[ed] the code of Ethics and Conduct" on three occasions (the Form). Id. at 7-8; Compl.
[#1-2] Ex. A (December 2015 Employment Discrimination Compl.) at 12-13.

In reaction, while his first EEO pre- complaint was still pending, Plainti fffiled a second EEO

pre-complaint on November 9, 2015. Id. at 9. Plaintiff and the IRS subsequently agreed to another

mediation, which took place on December 10,2015. Id. The mediation was ultimately unsuccessful
and Plaintiff filed a formal complaint of employment discrimination with the Treasury on

December 31,2015. Id.; December2015 Employment Discrimination Compi. The IRS and Plaintiff
again agreed to participate in mediation. Id. Following this third attempt at mediation, the IRS and

Neither party explained what it means to "be allowed travel time," and the Court assumes this phrase refers
to an employer's practice of marking the time when an employee is offsite as excused.
1

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Plaintiffreached a settlement. Id. at 9-10; Compi. [#1-3] Ex. B (Settlement Agreement). According
to Plaintiff, as part of the Settlement Agreement, the IRS agreed to remove the AWOL charges,

remove the Form from Plaintiffs file, and pay nominal attorney's fees. Id. (citing the Settlement
Agreement). In return, Plaintiff agreed to withdraw his pending complaints. Settlement Agreement
at 1.

On July 18, 2016, Plaintiff received a notice proposing his removal from the IRS.2 Compl.
[#1-4] Ex. C (Proposed Removal Notice). On August 3, 2016, the IRS provided Plaintiff with the

materials supporting the Proposed Removal Notice, which included the Form. Compi. [#1] at 11;
Compl. [#1-5] Ex. D (Supporting Materials) at 1. On August 5, 2016, through his attorney, Plaintiff

filed a letter outlining his allegations regarding systematic retaliation and the IRS's bad faith in
drafting and executing the Settlement Agreement with the Treasury's Office of Civil Rights and

Diversity (OCRD). Compl. [#1] at 11. In response, via a document titled "Department of the
Treasury Agency Final Decision" and dated August 26, 2016, the IRS informed Plaintiff it found no

breach of the Settlement Agreement because Plaintiff "failed to notify the OCRD within 30 days of
when he discovered or should have known of the alleged noncompliance." Compl. [#1-6] Ex. E
(Treasury Final Decision) at 7-9, 6. Plaintiff asserts he received the Treasury Final Decision on
September 6,2016. Compl. [#1] at 11-12.
On October 10,2016, Plaintiff filed a second formal complaint with the Treasury concerning

the Proposed Removal Notice. Compl. [#1] at 12-13. A little less than two months later, on

2

The consequences of proposed removal are unclear. While the Court assumes removal is synonymous with
termination, the Court will continue to use the term "proposed removal" for accuracy.

Neither party provided the Court with a copy of the October 2016 complaint.

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December 5, 2016, Plaintiff filed this lawsuit. Plaintiff contends the Treasury, through the actions

of the IRS, unlawfully retaliated against him for filing complaints and participating in the EEO
process in violation of Title Vii's anti-retaliation provision, 42 U.S.C.

§

2000e-3(a). Id. at 12.

Additionally, Plaintiff asserts "a party can breach an agreement by exhibiting bad faith in the

execution of the terms" and claims the IRS acted in bad faith by misleading him in drafting the
Settlement Agreement. Id.

Analysis
Defendant moves to dismiss, arguing the court lacks subject matter jurisdiction because
Congress has not waived sovereign immunity for Plaintiff's particular claims. Alternatively,

Defendant contends he is entitled to summary judgment on the same grounds.
I.

Legal Standard
The Federal Rules of Civil Procedure require this Court to dismiss a cause for lack of subject

matterjurisdiction "when the court lacks the statutory or constitutional power to adjudicate the case."
Home Builders Assn. ofMiss., Inc.

v.

City

of Madison,

143 F.3d 1006, 1010 (5th Cir. 1998); FED.

R. Civ. P. 1 2(b)(1). "Sovereign immunity is jurisdictional in nature." FDIC v. Meyer, 510 U.S. 471,

475 (1994). Waivers of sovereign immunity must be clearly stated by the federal government. See

United States v. Mitchell, 463 U.S. 206,212 (1983) ("It is axiomatic that the United States maynot

be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.").
Claims barred by the invocation of sovereign immunity "can be dismissed only under Rule 1 2(b)( 1)
and not with prejudice." Warnock v. Pecos Cly., 88 F.3d 341, 343 (5th Cir. 1996).

"[T]he burden on a rule 12(b)(1) motion is on the party asserting jurisdiction." Castro

v.

United States, 608 F.3d 266, 268 (5th Cir. 2010) (en banc). Under appropriate circumstances, the

Court may determine the issue of subject matter jurisdiction based upon "(1) the complaint alone;
(2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court's resolution of disputed facts." Ballew

v.

Cont '1

Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012) (quoting Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001)).

II.

Application
Here, Defendant claims Congress has not waived sovereign immunity (1) for discrimination

or retaliation claims not first exhausted through the proper administrative process or (2) for an action

alleging breach of a settlement agreement. Mot. [#10] at

1.

Plaintiff responds he has exhausted the

administrative remedies for the claims raised in this case. Resp. [#11] at 2, 4. Plaintiff also contends

he brings only claims for unlawful retaliation in violation of 42 U.S.C.

§

2000e-3(a) and not a stand-

alone breach of contract claim. Id. at 1-4. Specifically, "{i]t is Plaintiffs position that Defendant's

conduct with regard to the settlement agreement and the manner of the breach are part of the
retaliation and harassment." Id. at 2. Thus, the Court only examines whether it has subject matter

jurisdiction over Plaintiff's retaliation claims. Cf Caterpillar Inc.

v.

Williams, 482 U.S. 386, 392

(1987) ("[T]he plaintiff [is] the master of the claim; he or she may avoid federal jurisdiction by

exclusive reliance on state law.")
Prior to filing suit under Title VII, a plaintiff must exhaust his administrative remedies. See
42 U.S.C. § § 2000e-5(e), 2000e- 16(c). Administrative remedies are considered exhausted "when the

federal agency gives notice of its final action, or when 180 days have passed since the initial formal
charge was filed with the agency." See Thomas

v.

2011) (per curiam) (citing § 2000e-16(c)).
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Napolitano, 449 F. App'x. 373, 375 (5th Cir.

Defendant claims Plaintiff filed his administrative claims for discrimination and retaliation

on March 9, 2017, and May 3, 2017 (2017 Complaints). Mot. [#10] at 2. Thus, according to
Defendant, Plaintiff has not exhausted his claims for the 2017 Complaints because he has not

received a final action on those complaints and Plaintiff did not file this lawsuit 180 days after filing
the 2017 Complaints. Id. at 6
However, Defendant appears to confuse the 2017 Complaints with the complaints at issue

in this case. Although potentially related, the substance of this lawsuit appears to differ from the
substance of the 2017 Complaints. This lawsuit alleges the IRS retaliated against Plaintiff for
participating in EEO processes by settling his prior complaints in bad faith and improperly using

evidence to support his proposed removal.

See

Compl. [#1]. By contrast, the 2017 Complaints

concern the denial of sick leave, performance evaluations, discipline, termination, and unfavorable

work assignments, among other items.

See Treasury

Investigation Letters.

Plaintiff, on the other hand, has provided evidence he received a final action from the

Treasury.

See

Treasury Final Decision. The Treasury Final Decision definitively stated the

"Complainant is not entitled to relief' in response to Plaintiffs allegations of systematic retaliation
and bad faith in drafting and executing the Settlement Agreement. Id. at 2, 7-9. Furthermore, the

Treasury Final Decision informed Plaintiff he had "the right to appeal to the Equal Employment
Opportunity Commission (EEOC) or to file a civil action in an appropriate United States District

Court." Id. at 3. The Treasury Final Decision specifically indicated Plaintiff was required to "file a
civil action.

'

. .

within 90 days after you receive this final decision.. . ." Id. at 4 (emphasis omitted).

Neither party provided the Court with copies of the 2017 Complaints. Defendant oniy provides copies of
Treasury letters accepting the 2017 Complaints for investigation. See Mot. [#10-1, #10-2, #10-3] Exs. 1-3 (Treasury
Investigation Letters).

Initiating this lawsuit on December 5, 2016, Plaintiff filed this civil action within ninety days of
receiving the Treasury Final Decision. Consequently, Plaintiff exhausted his administrative remedies
before he filed his retaliation claims.

Conclusion
Because Plaintiff carried his burden to establish this Court's subject matter jurisdiction, the
Court denies Defendant's motion to dismiss, or, in the alternative, motion for summary judgment.
Accordingly:
IT IS ORDERED that Defendant Steven Mnuchin's Amended Motion to Dismiss,

or, in the alternative, Motion for Summary Judgment [#10J is DENIED.

4:

SIGNED this the

qday of September 2017.

SASPAr''

UNITED STATES DISTRICT JUDGE

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