Ladson v. Jue et al

Filing 6

MEMORANDUM OPINION: For the following reasons, the Court will grant the Defendants motion and dismiss the complaint. An appropriate Order shall issue. Signed by District Judge James C. Cacheris on 6/16/15. (yguy)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
AVEMARIA M. LADSON,
Plaintiff,
v.
JOSEPH H. JUE, DIRECTOR &
CHIEF EXECUTIVE OFFICER, et
al.,
Defendants.

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M E M O R A N D U M

1:15-cv-547 (JCC/IDD)

O P I N I O N

This matter is before the Court on Defendant Joseph H.
Jue and Defendant Defense Commissary Agency’s Motion to Dismiss.
[Dkt. 2.]

For the following reasons, the Court will grant the

motion and dismiss the case.
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).

On November 17, 2014, Plaintiff Avemaria M. Ladson
(“Plaintiff”) was hired as a Sales Store Checker with Defendant
Defense Commissary Agency (“DeCa”) at Fort Meyer in Arlington,

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Virginia on a “career-conditional appointment.”1

(Defs.’ Mem. in

Supp. of Mot. to Dismiss [Dkt. 3] at 2 (citing Ex. A).)
Plaintiff’s appointment required her to serve a one-year
probationary period.

(Defs.’ Mem. Ex. C at 2 (“In accordance

with 5 C.F.R. Section 315.804, a probationary employee’s
employment may be terminated at any time his/her work
performance or conduct fails to demonstrate fitness for
continued employment.”).)

On February 14, 2015, Plaintiff was

terminated before her probationary period was completed for
“conduct and performance related issues.”

(Id.)

On March 12, 2015, Plaintiff filed suit in the Circuit
Court for Arlington County against Defendant Joseph H. Jue,
Director and Chief Executive Officer, and Defendant DeCa.
(Compl. [Dkt. 1-2] at 1.)
fired.

(Compl. ¶ 3.)

Plaintiff claims she was wrongfully

Plaintiff also claims her life was

threatened on the job by another employee and that she was
“accused of helping a lady walk away with approximately . . .
$200.00.”

(Id. at ¶¶ 4-5.)

she was harassed on the job.

It also appears Plaintiff claims
(Id. at ¶ 7 (“On or about

February, 2015 and January, 2015 being harass [sic] on the job
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Defendants attach Plaintiff’s employment records to their
memorandum in support of the motion to dismiss. (Defs.’ Mem.
Ex. A.) The Court may look to evidence outside the pleadings to
adjudicate motions to dismiss for lack of jurisdiction under
Rule 12(b)(1) of the Federal Rules of Civil Procedure. See,
e.g., Velasco v. Government of Indonesia, 370 F.3d 392, 398 (4th
Cir. 2004).
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about the fight in the till [sic] room between two employees,
and stealing money from the cash register every other day.”).)
Plaintiff demands $10 million dollars.

(Compl. ¶ 8.)

One week after filing suit, on March 19, 2015,
Plaintiff contacted a DeCa Employment Opportunity (“EEO”)
counselor.

(Defs.’ Mem. Ex. D ¶ 3.)

On March 24, 2015,

Plaintiff submitted a pre-complaint EEO intake form to the DeCa
office alleging discrimination based on gender, age, race, and
religion.

(Id.)

She also claimed retaliation for prior EEO

activity, but DeCa’s EEO office had no record of such activity.
(Id.)
Court.

On April 27, 2015, Defendants removed the action to this
(Notice of Removal [Dkt. 1].)

On May 4, 2015,

Defendants filed a motion to dismiss for lack of jurisdiction
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure, a memorandum in support, and a Roseboro Notice.
(Defs.’ Mot. to Dismiss [Dkt. 2]; Defs.’ Mem. [Dkt 3]; Roseboro
Notice [Dkt. 2-1].)

Plaintiff did not file an opposition to the

motion but appeared and made argument at the hearing on June 11,
2015.

Thus, the motion is ripe for disposition.
II. Legal Standard
Pursuant to Rule 12(b)(1) of the Federal Rules of

Civil Procedure, a claim may be dismissed for lack of subject
matter jurisdiction.

Fed. R. Civ. P. 12(b)(1).

Defendants may

attack subject matter jurisdiction in one of two ways.
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First,

defendants may contend that the complaint fails to allege facts
upon which subject matter jurisdiction may be based.

See Adams

v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); King v. Riverside
Reg’l Med. Ctr., 211 F. Supp. 2d 779, 780 (E.D. Va. 2002).

In

such instances, all facts alleged in the complaint are presumed
to be true.

Adams, 697 F.2d at 1219; Virginia v. United States,

926 F. Supp. 537, 540 (E.D. Va. 1995).

Alternatively,

defendants may argue that the jurisdictional facts alleged in
the complaint are untrue.
Supp. 2d at 780.

Adams, 697 F.2d at 1219; King, 211 F.

In that situation, “the Court may ‘look beyond

the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine
whether in fact subject matter jurisdiction exists.’”

Virginia

v. United States, 926 F. Supp. at 540 (citing Capitol Leasing
Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993)); see also Adams,
697 F.2d at 1219; Ocean Breeze Festival Park, Inc. v. Reich, 853
F. Supp. 906, 911 (E.D. Va. 1994).

In either case, the burden

of proving subject matter jurisdiction falls on the plaintiff.
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189
(1936); Adams, 697 F.2d at 1219.
III. Analysis
A. Subject Matter Jurisdiction
The Court liberally construes the pro se Plaintiff’s
Complaint to allege claims for wrongful termination, harassment,
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discrimination based on gender, age, race, and religion, and
retaliation under Title VII.

Defendants note the Virginia state

court where Plaintiff originally filed her Complaint did not
have jurisdiction to hear wrongful termination or Title VII
claims brought by a federal employee, and that because the case
was removed to this Court, this Court also lacks jurisdiction.
(Defs.’ Mem. at 7-8.)
An employee’s claim against a federal employer
pursuant to 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 Civil Service Reform Act (“CSRA”).
7701, 7703.

See 5 U.S.C. §§

Thus, the Circuit Court for Arlington County lacked

subject matter jurisdiction to hear Plaintiff’s wrongful
termination and Title VII claims.
When a case is removed from state court to federal
court under 18 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).
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Consequently, because the Virginia state court lacked
jurisdiction to entertain Plaintiff’s claims in this case, this
Court did not acquire jurisdiction by reason of the case’s
removal under 28 U.S.C. § 1442.

Thus, Plaintiff’s claims must

be dismissed because this Court lacks subject matter
jurisdiction to adjudicate her claims.
B. Wrongful Termination Claim
In the alternative, even if this Court did have
subject matter jurisdiction, this Court lacks jurisdiction to
hear Plaintiff’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
years of service.2

Elgin, 132 S. Ct. at 2130.

If an agency

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

Elgin, 132 S. Ct. at
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
whom the CSRA grants administrative and judicial review.”
Elgin, 132 S. Ct. at 2133.
Here, Plaintiff 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 for
this alternative reason.

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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C. Title VII Claims
Again in the alternative, even if this Court had
subject matter jurisdiction, Plaintiff’s Title VII claims must
fail 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. 2008) (citing Brown v. General 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).

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

While Defendants acknowledge that

Plaintiff contacted a DeCa EEO counselor one week after filing
the Complaint in state court, the only additional step Plaintiff
took was filing a pre-complaint EEO intake form.
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(Defs.’ Mem.

at 2-3.)

Nothing else before the Court suggests that she

exhausted her administrative EEO remedies before filing suit.
Therefore, even if the Court had jurisdiction to hear the Title
VII claims, they must be dismissed for Plaintiff’s failure to
exhaust her administrative remedies.
IV. Conclusion
For the following reasons, the Court will grant the
Defendants’ motion and dismiss the complaint.
An appropriate Order shall issue.

June 16, 2015
Alexandria, Virginia

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

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