Johnson v. Equal Employement Opportunity Commission et al

Filing 15

MEMORANDUM OPINION re Respondents' Motion to Dismiss, Petitioner's Motion for Summary Disposition. Signed by District Judge James C. Cacheris on 11/7/2011. (klau, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ROBERT A. JOHNSON,
Petitioner,
v.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, et al.,
Respondents.

)
)
)
)
)
)
)
)
)
)

1:10cv1330 (JCC/JFA)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Respondents’ Motion
to Dismiss [Dkt. 6] and Petitioner’s “Motion for Summary
Disposition” [Dkt. 12].

For the following reasons, the Court

will grant Respondents’ motion and deny Petitioner’s motion.
I. Background
This case arises out of the dismissal of an equal
employment opportunity (“EEO”) complaint filed by pro se
Petitioner Robert Johnson (“Petitioner” or “Johnson”), which
alleged racial discrimination in the course of Johnson’s
employment at the United States Air Force.

Respondents are the

Equal Employment Opportunity Commission (“EEOC”) and the United
States Air Force (collectively, the “Respondents”).
Johnson was previously employed by the Air Force as a
sales clerk in its Gear Up sporting goods store at Ramstein Air

1

Base in Germany.

(Memorandum in Support of Motion to Dismiss

[Dkt. 7] (“Mem.”) at 2.)

In June 2006, Johnson’s coworker,

Reynolds Hill, allegedly referred to Johnson in a racially
pejorative manner.

(Id.)

Hill subsequently became Johnson’s

supervisor and, in December 2006, issued a notice of termination
to Johnson based on his failure to follow written instructions
and insubordination.

(Id.)

Johnson filed a grievance

concerning the notice, and the notice was rescinded.

(Id.)

Johnson, however, remained unsatisfied as the Air
Force failed to address his renewed concerns regarding the June
2006 incident.

(Id.)

He thus continued to pursue relief

through the EEO process.

(Id.)

A final agency decision was

reached and Johnson’s complaint was dismissed on the grounds
that Johnson failed to prove he was subject to discrimination.
(Id.)
Johnson then filed an appeal with the EEOC Office of
Federal Operations (“OFO”), which affirmed the dismissal of
Johnson’s complaint.

(Id.)

The OFO held that (1) the

Administrative Judge properly dismissed the complaint from the
hearing process based on Johnson’s failure to respond to
discovery requests; (2) the agency properly dismissed Johnson’s
claim concerning the racially pejorative reference on timeliness
grounds; and (3) the agency articulated reasonable, nondiscriminatory reasons for terminating Johnson’s employment.

2

See Johnson v. Donley, Appeal No. 0120090115, 2010 WL 1936946,
at *3-4 (E.E.O.C. May 6, 2010).

The OFO instructed Johnson that

he had the right to file a civil action in an appropriate
federal district court within ninety days from the date he
received the decision.

Id. at *5.

Instead of filing a complaint in federal district
court, Johnson, proceeding pro se, filed a one-page petition for
review in the District of Columbia Circuit Court of Appeals on
August 2, 2010.

[Dkt. 1.]

The Court of Appeals subsequently

transferred the petition to this Court.

After Johnson failed to

take action, on June 30, 2011 this Court issued an Order to Show
Cause as to why this case should not be dismissed for failure to
file a complaint.
July 21, 2011.

[Dkt. 2.]

[Dkt. 3.]

Johnson submitted a response on

On October 3, 2011, Respondents filed

a Motion to Dismiss pursuant to Federal Rules of Civil Procedure
8 and 12(b)(6).

[Dkt. 6.]

Rather than responding to the Motion

to Dismiss, Johnson filed a “Motion for Summary Disposition” on
October 18, 2011.

[Dkt. 12.]

Respondents submitted a reply in

further support of their Motion to Dismiss on October 18, 2011.
[Dkt. 13.]

The respective motions of Petitioner and Respondents

are before the Court.

3

II.
A.

Standard of Review

Motion to Dismiss

Rule 12(b)(6) allows a court to dismiss those
allegations which fail “to state a claim upon which relief can
be granted.”

Fed. R. Civ. P. 12(b)(6).

A court may dismiss

claims based upon dispositive issues of law.
Spalding, 467 U.S. 69, 73 (1984).

Hishon v. King &

The alleged facts are

presumed true, and the complaint should be dismissed only when
“it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations.”
Id.
In deciding a 12(b)(6) motion, a court must first be
mindful of the liberal pleading standards under Rule 8, which
require only “a short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8.

While Rule 8 does not require “detailed factual allegations,” a
plaintiff must still provide “more than labels and conclusions”
because “a formulaic recitation of the elements of a cause of
action will not do.”

Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555-56 (2007)(citation omitted).
To survive a 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting

4

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.”

Id.

However, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to meet this standard,
id., and a plaintiff’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level . . . .”
Twombly, 550 U.S. at 555.

Moreover, a court “is not bound to

accept as true a legal conclusion couched as a factual
allegation.”
B.

Iqbal, 129 S.Ct. at 1949-50.
Pro Se Plaintiff

The Court construes the pro se filings in this case
more liberally than those drafted by an attorney.
Kerner, 404 U.S. 519, 520 (1972).

See Haines v.

Further, the Court is aware

that “[h]owever inartfully pleaded by a pro se plaintiff,
allegations are sufficient to call for an opportunity to offer
supporting evidence unless it is beyond doubt that the plaintiff
can prove no set of facts entitling him to relief.”

Thompson v.

Echols, No. 99-6304, 1999 WL 717280, at *1 (4th Cir. Sept. 15,
1999) (citing Cruz v. Beto, 405 U.S. 319 (1972)).

Nevertheless,

while pro se litigants cannot “be expected to frame legal issues
with the clarity and precision ideally evident in the work of
those trained in law, neither can district courts be required to

5

conjure up and decide issues never fairly presented to them.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1276 (4th Cir.
1985).

Thus, even in cases involving pro se litigants, the

Court “cannot be expected to construct full blown claims from
sentence fragments.”

Id. at 1278.
III. Analysis

In the Order to Show Cause issued June 30, 2011, this
Court instructed Petitioner to explain why this case should not
be dismissed for failure to file a complaint.

In response,

Petitioner does not attempt to justify his prior inaction nor
does he ask for leave to file a complaint.

Rather, he launches

into an attack of the manner in which EEOC processed his
complaint.

Respondents point out that Petitioner’s response is

written in brief format and bears little resemblance to a
complaint.

See Fed. R. Civ. P. 8(a).

The document does not set

forth causes of action nor does it demand relief aside from
judicial review of the EEOC’s decision.1
Petitioner has also filed a “Motion for Summary
Disposition,” which he requests the Court to consider in
conjunction with his response to the Order to Show Cause.

In

this filing, Petitioner does not challenge the manner in which
1

In any event, even were the Court to liberally construe the response as a
complaint, the Court notes that Petitioner has failed to state a cognizable
claim. See Terry v. Dir., Complaint Adjudication Div., U.S. E.E.O.C., Office
of Fed. Operations, 21 F. Supp. 2d 566, 569 (E.D. Va. 1998) (“Courts have
uniformly held that no cause of action exists with respect to the EEOC’s
handling of discrimination claims because Congress has given plaintiffs a
right to file a de novo lawsuit against the allegedly discriminating
employer.”) (citing cases), aff’d 173 F.3d 425 (4th Cir. 1999).

6

the EEOC processed his claims, but rather describes the
allegations underlying his discrimination claim and asks the
Court to return judgment in his favor.

Although its contents

come closer to what would be needed to formulate a complaint,
the document is still written in brief format.

Rather than

making a short and plain statement showing that Petitioner is
entitled to relief, Petitioner seeks judgment as a matter of law
– without ever having filed a complaint.
The Court cannot act as Petitioner’s advocate and
develop claims that have not been clearly raised on the face of
a complaint.

See Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir.

1978); see also Parker v. Champion, 148 F.3d 1219, 1222 (10th
Cir. 1998) (a court may not rewrite a pro se plaintiff’s
pleading to include claims that were never presented).

Because

Petitioner has neither filed a complaint nor offered
justification for his failure to do so, the Court grants
Respondents’ Motion to Dismiss.

Petitioner has been instructed

multiple times of the need to file a complaint - first in the
OFO’s decision, then by this Court in its Order to Show Cause,
and finally by Respondents themselves in the memorandum
supporting their Motion to Dismiss.

Given Petitioner’s repeated

failure to heed these instructions, the Court dismisses this
action with prejudice.

7

IV.

Conclusion

For these reasons, the Court will grant Respondents’
Motion to Dismiss and deny Petitioner’s Motion for Summary
Disposition.
An appropriate Order will issue.

November 7, 2011
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

8