Whitbeck v. James et al

Filing 25

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

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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

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