Robinson v. Virginia Employment Commission et al

Filing 8

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 06/03/15. (pmil, )

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

KATHERINE B. ROBINSON,
Plaintiff,
v.
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION, et
al.,
Defendants.

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M E M O R A N D U M

1:15cv475(JCC/MSN)

O P I N I O N

This matter is before the Court on Defendant
Department of Justice/Drug Enforcement Administration’s
(“DOJ/DEA” or “Defendant”) Motion to Dismiss.
Court granted the motion from the bench.

[Dkt. 3.]

The

This opinion

memorializes the Court’s reason for its decision.
I. Background
At the motion to dismiss stage, the Court must read
the complaint as a whole, construe the complaint in a light most
favorable to the plaintiff, and accept the facts alleged in the
complaint as true.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Katherine Robinson (“Robinson” or “Plaintiff”) worked at DEA for
twenty-five years before she was terminated on an unspecified
date.

(Notice of Removal [Dkt. 1], Ex. B, at 4.)
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Robinson

claims she was sexually harassed by her immediate supervisor at
DEA.

(Id.)

with “EEO.”

She reported her harassment and filed a complaint
(Id. at 5.)

After filing the complaint, “things

started happen[ing] around [her] desk at work and [her] home.”
(Id.)

Specifically, she avers that the lock on her work locker

was changed so that she could not get her purse and keys to
return home.

(Id.)

Additionally, her car had a flat tire, and

“[t]hings from [her] home started showing up in [her work] desk
draw[er]” which had been locked.

(Id. at 4-5.)

She advised her

third-line supervisor that some of her co-workers had entered
her home illegally and she believed that “they were looking for
the EEO sexual harassment complaint.”

(Id. at 7.)

According to Robinson, the “[o]nly way [she] could
show proof that things were happening to [her] at home and [her]
work station was to take pictures,” so she took pictures of her
office space, even though she “worked in a secure department.”
(Id. at 6.)

Robinson did not think it was a problem to take

pictures because the department had holiday parties, baby
showers, and the like “and taking pictures [was] never a problem
before.”

(Id.)

One of her supervisors told her to stop taking

pictures, which Robinson asserts she did, but that “[a]s [she]
was putting [her] camera away, [her] camera dropped to the floor
and the flash went off.”

(Id. at 9.)

2

After the camera incident, which occurred on May 14,
1997, Robinson was terminated from her job after an
investigation.

(Id. at 8-9.)

On June 6, 2013 Robinson filed a

complaint nearly identical to the one here in the Circuit Court
for Prince George’s County, Maryland against DOJ/DEA.
Mem. in Supp., Ex. B, at 9.)

(Def.’s

Defendant removed the case to the

District Court of Maryland.

(Id.)

Defendant then moved to

dismiss Robinson’s complaint for lack of subject matter
jurisdiction, for failure to state a claim, and insufficient
service of process.
complaint.

(Id.)

The Court dismissed Robinson’s

To the extent Robinson’s complaint asserted claims

under Title VII, the Court held that her complaint must be
dismissed for failing to exhaust her administrative remedies.
(Id. at 14.)

The Court also held that the court did not have

jurisdiction to entertain her wrongful termination claim under
the Civil Service Reform Act (“CSRA”).

(Id. at 15.)

Finally,

the Court held that the Court lacked jurisdiction over the
entire suit because the state court lacked jurisdiction in the
first instance.

(Id. at 16.)

Robinson filed the present lawsuit in the Circuit
Court for Arlington County on January 26, 2015, naming DOJ/DEA
and the Virginia Unemployment Commission as defendants.
of Removal, Ex. B.)
1442.

(Notice

Defendant timely removed under 28 U.S.C. §

(Notice of Removal, Ex. B, at 2.)
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Defendant moves to

dismiss for lack of subject matter jurisdiction and for failure
to state a claim.

(Def.’s Mem. in Supp. [Dkt. 4] at 4-5.)

Robinson has not opposed this motion and she did not appear for
the motion hearing.

Having been briefed and argued, this motion

is ripe for disposition.
II. Analysis
A. Subject Matter Jurisdiction
Construing the complaint to allege claims for sexual
harassment and retaliation under Title VII as well as wrongful
termination, Defendant notes that the Virginia state court where
Robinson originally filed her complaint had no jurisdiction to
hear Title VII or wrongful termination claims brought by federal
employees, and that because the case was removed to this Court,
this Court also lacks such jurisdiction.

(Def.’s Mem. in Supp.

at 10-11.)
A claim against a federal employer under Title VII
must be filed in federal, not state court.

See Bullock v.

Napolitano, 666 F.3d 281, 284 (4th Cir. 2012), cert. denied, 133
S. Ct. 190 (2012).

A state court is similarly without

jurisdiction to review any wrongful termination claims under the
provisions of the Civil Service Reform Act (“CSRA”).
U.S.C. §§ 7701, 7703.

See 5

Thus, the Circuit Court for Arlington

County lacked subject matter jurisdiction to hear Robinson’s
Title VII and wrongful termination claims.
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When a case is removed from state court to federal
court under 28 U.S.C. § 1442, as was done here, “[t]he
jurisdiction of the federal court on removal is, in a limited
sense, a derivative jurisdiction.

If the state court lacks

jurisdiction of the subject-matter or of the parties, the
federal court acquires none, although it might in a like suit
originally brought there have had jurisdiction.”

Bullock, 666

F.3d at 286 (citations and internal quotation marks omitted).
As a result, because the Virginia state court lacked
jurisdiction to entertain Robinson’s claims in this case, this
Court did not acquire jurisdiction by reason of the case’s
removal under 28 U.S.C. § 1442 from state to federal court.
Thus, Robinson’s claims must be dismissed because this Court
lacks subject matter jurisdiction to hear her claims.
B. Wrongful Termination Claim
Even if this Court did have subject matter
jurisdiction over this lawsuit, this Court lacks jurisdiction to
hear Robinson’s claim for wrongful termination.

The CSRA

“established a comprehensive system for reviewing personnel
action taken against federal employees.”

Elgin v. Dep’t of

Treasury, 132 S. Ct. 2126, 2130 (2012) (citing United States v.
Fausto, 484 U.S. 439, 455 (1988)).

Employees entitled to review

are those in the “competitive service” and “excepted service”
who meet certain requirements regarding probationary periods and
5

years of service. 1

Elgin, 132 S. Ct. at 2130.

If an agency

takes final adverse action against a covered federal employee,
the CSRA gives the employee the right to a hearing before the
Merit Systems Protection Board (“MSPB”).

Elgin, 132 S. Ct. at

2130 (citing 5 U.S.C. § 7701(a)(1)-(2)).

An employee who is

dissatisfied with the MSPB’s decision is entitled to judicial
review in the United States Court of Appeals for the Federal
Circuit.

Id. (citing 5 U.S.C. § 7703(b)(1)(A)).

The “CSRA’s

elaborate framework demonstrates Congress’ intent . . . that
extrastatutory review is not available to those employees to

1

As the Supreme Court explained in Elgin, the CSRA divides civil
service employees into three main categories.
“Senior Executive Service” employees occupy
high-level positions in the Executive Branch
but are not required to be appointed by the
President and confirmed by the Senate. 5
U.S.C. § 3131(2).
“[C]ompetitive service”
employees . . . are all other Executive
Branch employees whose nomination by the
President and confirmation by the Senate are
not required and who are not specifically
excepted from the competitive service by
statute. § 2102(a)(1).
The competitive
service also includes employees in other
branches of the Federal Government and in
the District of Columbia government who are
specifically
included
by
statute.
§
2102(a)(2)–(3).
Finally, “excepted service”
employees are employees who are not in the
Senior
Executive
Service
or
in
the
competitive service. § 2103.
Elgin, 132 S.Ct. at 2130 n.1.
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whom the CSRA grants administrative and judicial review.”
Elgin, 132 S. Ct. at 2133.
Here, Robinson is a covered federal employee.

Any

claim for wrongful termination must have been brought through
the administrative and judicial procedures outlined in the CSRA.
Accordingly, this Court does not have jurisdiction to hear her
wrongful termination claim, and as such it must be dismissed.
C. Title VII Claims 2
Even if this Court had jurisdiction over this action,
Robinson’s Title VII claims must be dismissed for failure to
exhaust her administrative remedies.

“Federal employees who

seek to enforce their rights under Title VII of the Civil Rights
Act of 1964, 42 U.S.C.C § 2000e et seq., must exhaust their
available administrative remedies prior to pursing an action in
federal court.”

Austin v. Winter, 286 F. App’x 31, 35 (4th Cir.

2

Defendant argues that res judicata, or claim preclusion, bars
Robinson from asserting these claims here since they were
already decided in the Maryland litigation. (Def.’s Mem. in
Supp. at 5-7.) However, the Maryland district court ultimately
concluded it lacked jurisdiction to hear any of Robinson’s
claims, since the claims were originally filed in Maryland state
court and that court did not have jurisdiction over any of
Robinson’s claims. (See Def.’s Mem. in Supp., Ex. B, at 16.)
Therefore, since the Court lacked jurisdiction to hear
Robinson’s claims, there was no judgment on the merits as to
whether she exhausted her administrative remedies, and res
judicata does not apply here. See United States ex rel. May v.
Purdue Pharma L.P., 737 F.3d 908, 912 (4th Cir. 2013)
(“[J]urisdictional dismissals are not judgments on the merits
for purposes of res judicata.”) (citations and internal
quotation marks omitted).
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2008) (citing Brown v. Gen. Serv. Admin., 425 U.S. 820, 832
(1976)).

A federal employee must initiate contact with an Equal

Employment Opportunity (“EEO”) counselor within forty-five days
of the occurrence of alleged discrimination to see if the issue
can be resolved informally.

29 C.F.R. § 1614.105(a). 3

Should

informal counseling fail, the employee is required to file a
formal complaint within fifteen days of receiving notice to do
so.

29 C.F.R. 1614.106(b).

Following the employee’s receipt of

the agency’s final decision, she has only ninety days to
initiate a suit in federal court.

29 C.F.R. § 1614.407(a).

Here, Robinson does not allege that she has exhausted
her administrative remedies.

While the complaint does reference

an EEO complaint, such a complaint was filed in 1997,
approximately seventeen years ago.

As such, Robinson has failed

to initiate suit within the ninety-day period required by the
pertinent regulation.
“In appropriate circumstances” the time limitations to
initiating a lawsuit in federal court alleging discrimination
may be subject to equitable tolling.

Zografox v. V.A. Med.

Cntr., 779 F.2d 967, 970 (4th Cir. 1985); see also Moret v.
Green, 494 F. Supp. 2d 329, 338 (D. Md. 2007).

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“Equitable

Defendant notes that prior to 1999, including the time Robinson
was employed by DEA, federal employees only had thirty days from
the alleged discrimination to contact an EEO counselor. (Def.’s
Mem. in Supp. at 8 (citing 29 C.F.R. 1613.214(a)(1) (1990).)
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estoppel applies where, despite the plaintiff's knowledge of the
facts, the defendant engages in intentional misconduct to cause
the plaintiff to miss the filing deadline.”

Moret, 494 F. Supp.

2d at 338 (citation and internal quotation marks omitted).

“The

statute of limitations will not be tolled on the basis of
equitable estoppel unless the employee's failure to file in a
timely fashion is the consequence of either a deliberate design
by the employer or of actions that the employer should
unmistakably have understood would cause the employee to delay
filing his charge.”
omitted).

Id. (citation and internal quotation marks

Here, Robinson has not alleged any facts that tend to

show DOJ/DEA engaged in intentional misconduct that caused
Robinson to miss the filing deadline.

Therefore, even if the

Court had jurisdiction to hear the Title VII claims, they must
be dismissed for Robinson’s failure to exhaust her
administrative remedies.
III. Conclusion
For the foregoing reasons, the Court dismissed
Robinson’s claims.

Robinson’s claims against the Virginia

Employment Commission will be remanded back to state court, as
this Court lacks jurisdiction over the Virginia Employment
Commission.

See Va. Code § 60.2-625(A) (“Within thirty days

after the decision of the Commission upon a hearing pursuant to
§ 60.2-622 has been mailed, any party aggrieved who seeks
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judicial review shall commence an action in the circuit court of
the county or city in which the individual who filed the claim
was last employed.”); Feliciano v. The Reger Grp., No.
1:14cv1670, 2015 WL 1539617, at *2 (E.D. Va. Apr. 7, 2015)
(“This Court is not a ‘circuit court’ within the meaning of
[60.2-625].”).

Robinson has sixty days from the date of this

Memorandum Opinion and accompanying Order to notice her appeal
with the Clerk of Court.

See Fed. R. App. P. 4(a)(1)(B)

(stating notice of appeal may be filed within sixty days after
entry of judgment if one of the parties is the United States or
a United States agency).

June 3, 2015
Alexandria, Virginia

An appropriate order will issue.

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

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