Whitbeck v. James et al

Filing 25

ORDER granting Defendants' 19 Motion to Dismiss signed by Judge Ricardo S Martinez. (PM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9
10
11

)
) CASE NO. C15-1949RSM
)
)
) ORDER GRANTING DEFENDANTS’
) MOTION TO DISMISS
)
)
)
)

JANEL M. WHITBECK,
Plaintiff,
v.

12
13
14

MICHELE JAMES, DFO, et al.,
Defendants.

15

I.

16
17
18

INTRODUCTION

This matter comes before the Court on Defendants Michele James, Patricia Hinchey,
Gregory Alvarez, Tyler Morgan, and Charles Cunningham’s Motion to Dismiss pursuant to

19
20

Rules 12(b)(1), (5), and (6). Dkt. #19. Plaintiff Janel Whitbeck opposes this Motion. Dkt.

21

#21. For the reasons stated below, the Court GRANTS Defendants’ Motion and dismisses all

22

remaining claims in this action.

23
24

II.

BACKGROUND

Ms. Whitbeck was employed as an Agriculture Specialist by United States Customs and

25
26

Border Protection (“CBP”), a component agency of the United States Department of Homeland

27

Security (“DHS”) from approximately June 2009 until February 2011. Dkt. #3 at 6. On

28

February 18, 2011, she was terminated from her position while serving in her probationary

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 1

1

period. Id. at 9. Specifically, the Agency decided to terminate Plaintiff’s employment because

2

of her excessive internet use in violation of CBP policy. Id. In her complaint, Plaintiff

3

generally alleges that male CBP employees working at the same time were given the

4

opportunity to resign rather than being terminated, were not disciplined in the same way she

5

was for the same behavior, and/or were converted to career positions after their probationary
6
7

periods ended. Id. at 4-5.

After her termination, Ms. Whitbeck filed an administrative

8

employment discrimination complaint against DHS. Id. at 9. DHS investigated Plaintiff’s

9

complaint, she requested a hearing, Administrative Judge Gaffin issued a decision without a

10

hearing finding no discrimination, DHS implemented the decision, and Plaintiff appealed

11

DHS’s decision to the EEOC. The EEOC issued a decision on appeal affirming the no
12
13

discrimination finding. Id.

14

Ms. Whitbeck alleges that she received a “Notice of Right to Sue Letter” from the

15

EEOC on November 19, 2015, Dkt. #3 at 2, and she attaches this letter to her Complaint. As

16

explained by the letter, Plaintiff had “the right to file a civil action in the appropriate United

17
18
19

States District Court within ninety (90) calendar days from the date that you receive this
decision.” Id. at 9. In addition, the letter informed Ms. Whitbeck:
If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or
department head, identifying that person by his or her full name
and official title. Failure to do so may result in the dismissal of
your case in court. ‘Agency’ or ‘department’ means the national
organization, and not the local office, facility or department in
which you work.

20
21
22
23
24
25

Id.

26

Disregarding this instruction, on December 14, 2015, Ms. Whitbeck filed suit against

27

the individual Defendants as well as the EEOC Administrative Judge, but not against the

28

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 2

1

official Agency head or department head. Dkt. #3 at 1. Plaintiff brought this suit pursuant to

2

Title VII, 5 C.F.R. § 315.085, various criminal statutes, and the Fifth, Sixth, Eighth and

3

Fourteenth Amendments to the U.S. Constitution. See id. at 4.

4

On February 8, 2016, Ms. Whitbeck filed an application for court-appointed counsel,

5

which was denied on March 2, 2016. Dkts. #5 and #6. Shortly thereafter, counsel for the
6
7

EEOC filed a notice of appearance on behalf of EEOC Administrative Judge Steven Gaffin on

8

March 7, 2016, and filed a motion to dismiss on his behalf on March 17, 2016. Dkts. #6 and #8.

9

The Court ultimately granted Judge Gaffin’s motion to dismiss. Dkt. #11.

10

While the other Defendants named in this case awaited service, Ms. Whitbeck filed

11

additional actions with this Court, yet continued to fail to effect service on any named party.
12
13

Specifically, on June 6, 2016, Ms. Whitbeck filed a lawsuit against DHS and CBP, based on the

14

same underlying facts and circumstances. See Whitbeck v Dep’t. of Homeland Security, et al.,

15

No. 16-CV-0877-JLR. On two separate occasions, Judge Robart directed Ms. Whitbeck to re-

16

file her complaint to cure deficiencies. Notwithstanding these instructions, Ms. Whitbeck

17
18

failed to cure the noted deficiencies and Judge Robart dismissed the case for lack of service of

19

process in December of 2016. See id. at Dkts. #7, #9, and #12. Meanwhile, on October 7,

20

2016, Plaintiff filed yet another complaint against DHS and CBP. Whitbeck v. DHS/CBP OPR-

21

PSD represented by Y. Murray, No. 16-cv-01564-JCC. Judge Coughenour dismissed that

22

complaint as frivolous on October 12, 2016. Id. at Dkt. #6.

23
24

While Ms. Whitbeck has personally served Michele James, Tyler Morgan, and Charles

25

Cunningham, Defendants allege she has not completed service on those individuals pursuant to

26

Rule 4(i). Dkt. #219 at 8. Defendants allege that Greg Alvarez and Pat Hinchey have never

27

been served with anything, and that Ms. Whitbeck has never served the Attorney General, the

28

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 3

1
2

relevant agency, or the U.S. Attorney’s Office in order to complete service on any party, as
required under Rule 4(i). Id. at 8-9.
III.

3
4

DISCUSSION

A. Legal Standard

5

A motion for insufficient service of process may be brought under Rule 12(b)(5). In
6
7

serving employees of the United States in either their official or individual capacities, the

8

Plaintiff must first serve the United States pursuant to Rule 4(i)(1) by sending the appropriate

9

paperwork to the United States Attorney’s Office, the Attorney General, and the relevant

10

agency, as well as either sending a copy to the individual employee (for official capacity suits),

11

or serving the employee under Rules 4(e), (f), or (g) (for individual capacity suits). See Fed. R.
12
13

Civ. P. 4(i). Rule 4(m) states, “[i]f a defendant is not served within 90 days after the complaint

14

is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action

15

without prejudice against that defendant or order that service be made within a specified time.

16

But if the plaintiff shows good cause for the failure, the court must extend the time for service

17
18
19
20
21
22
23
24
25
26
27
28

for an appropriate period.”
B. Defendants’ Motion
In addition to challenging Ms. Whitbeck’s claims under Rule 12(b)(6) and 12(b)(1),
Defendants highlight several procedural problems with Plaintiff’s lawsuit:
First, with regard to Plaintiff’s purported wrongful termination
claim, Plaintiff cannot state such a claim against the named
Defendants, as only the head of an agency is the proper defendant
in an employment discrimination case against the federal
government. Further, to the extent Plaintiff’s Complaint is
interpreted as bringing any other Title VII claims in addition to her
wrongful termination claim, those claims should be dismissed as
Plaintiff has not exhausted her administrative remedies with regard
to those claims. Plaintiff’s remaining claims under Constitutional
Amendments 5, 6, 8, and 14, 5 C.F.R. § 315.805, and various

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 4

criminal statutes should all be dismissed as a matter of law
pursuant to Rule 12(b)(6). Finally, Plaintiff has never appropriately
served the Defendants in accordance with Federal Rule of Civil
Procedure 4(i), and therefore dismissal under Rule 12(b)(5) is
appropriate as well.

1
2
3
4

Dkt. #19 at 2.

5

Of biggest concern to the Court are Ms. Whitbeck’s alleged failure to properly serve
6
7

Defendants and her failure to name the head of the agency where she worked. Unless Ms.

8

Whitbeck brings suit against the right defendants and properly serves those defendants, her

9

lawsuit cannot proceed. See Fed. R. Civ. P. 4(i) and (m); 42 U.S.C. § 2000e-16(c) (the only

10

proper defendant in a Title VII action is “the head of the department, agency or unit” in which

11

the alleged discriminatory acts occurred). Defendants argue that Ms. Whitbeck should be aware
12
13

of these requirements given the dismissal of her case before Judge Robart for failure to properly

14

serve under these rules. Dkt. #19 at 9-10 (citing Whitbeck v Dep’t. of Homeland Security, et al.,

15

No. 16-CV-0877-JLR, Dkt. #12). Defendants argue that because 90 days have passed since the

16

filing of the Complaint without service having been effected this case should be dismissed

17
18

without prejudice pursuant to Rule 4(m). Id. at 10.

19

In Response to Defendants’ Motion, Ms. Whitbeck discusses the merits of her case, but

20

fails to address her failure to properly serve Defendants or her failure to name the head of the

21

agency as required by law and explained to her in the EEOC’s letter attached to the Complaint

22

by Ms. Whitbeck herself.

23
24

Because Ms. Whitbeck fails to state otherwise, the Court concludes that Defendants’

25

allegations of failure to serve are true. Ms. Whitbeck offers no reason for her failure to serve

26

that could constitute good cause. Given the record before the Court, the head of the agency

27

where Ms. Whitbeck worked is the only proper defendant in this case.

28

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 5

Given that Ms.

1

Whitbeck has failed to properly serve Defendants under Rule 4(i) within 90 days, and failed to

2

properly name the CBP or DHS as a defendant, the Court will dismiss this action without

3

prejudice. See Fed. R. Civ. P. 4(i) and (m); 42 U.S.C. § 2000e-16(c). Given this, the Court

4

need not address Defendants’ arguments for dismissal under Rule 12(b)(1) or (6).

5

IV.

CONCLUSION

6
7
8
9
10

Having reviewed the relevant pleadings, the declarations and exhibits attached thereto,
and the remainder of the record, the Court hereby finds and ORDERS:
1) Defendants’ Motion to Dismiss (Dkt. #19) is GRANTED.

All of Plaintiff’s

remaining claims are dismissed without prejudice.

11

2) This case is CLOSED.
12
13

DATED this 17 day of July, 2017.

14
15
16
17
18

A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 6