Berry v. Gutierrez
| Citation | 587 F.Supp.2d 717 |
| Decision Date | 14 November 2008 |
| Docket Number | No. 1:08cv459 (JCC).,1:08cv459 (JCC). |
| Parties | Renee R. BERRY, Plaintiff, v. Carlos M. GUTIERREZ, Secretary, U.S. Dept. of Commerce, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Renee R. Berry, Washington, DC, pro se.
Leslie Bonner McClendon, United States Attorney's Office, Alexandria, VA, for Defendant.
This matter is before the Court on Defendant's Motion to Dismiss and on Plaintiff's Motion for Extension of Time and Request for Court-Appointed Counsel. For the reasons stated below, the Court will grant Defendant's motion and deny Plaintiff's motions.
Plaintiff Renee Berry ("Berry") has filed a number of cases, grievances, and appeals in several divisions of the executive and judicial branches of the federal government related to her employment with the United States Patent and Trademark Office ("USPTO"), an agency of the United States Department of Commerce, located in Alexandria, Virginia.1 Berry was removed from her position as a Patent Examiner in 2005 for poor performance. In August 2006, the USPTO agreed to reinstate Berry and to provide her with certain forms of financial compensation in return for the agreement of Berry and her union to withdraw an invocation of arbitration in a Federal Mediation & Conciliation Service ("FMCS") case, withdraw a pending EEOC complaint, and withdraw an administrative EEO complaint pending in the USPTO's Office of Civil Rights. See Def.'s Mem. in Supp. at 1-3.
The Settlement Agreement between the USPTO, Berry's union, and Berry, who was represented by counsel, stated that "[t]he time period dating from the Employee's removal through the time of reinstatement (absence from the Agency) will be designated as Leave Without Pay (LWOP)." Compl. Ex. 1 at ¶ 2(a).2 The Agreement further stated that Berry and her union "hereby waive, release, and forever discharge the Agency, its employees, agents, and representatives ... from any claims, demands, or causes of action which the Employee has arising from her removal and any action addressed in [the EEO and USPTO cases]." Compl. Ex. 1 at ¶ 4. The waiver Berry signed included the release Id. Berry, her union, and the USPTO reached the Settlement Agreement as part of a negotiated grievance process.
In January 2007, Berry e-mailed the USPTO's Office of Civil Rights, alleging a breach of the Settlement Agreement. The Office of Civil Rights responded by letter in February and explained that it did not have jurisdiction to review allegations that the USPTO did not comply with a grievance settlement. The Office of Civil Rights advised Berry that she could pursue her claims through the grievance process or file a new EEO complaint. EEOC Decision at 1-2 (Appeal No. 0120072269, attached to Compl.) ("EEOC Decision").
Berry appealed the USPTO Office of Civil Right's determination to the EEOC's Office of Federal Operations. She asked the EEOC to find the USPTO in breach of the Settlement Agreement and requested that it enforce the Agreement. In February 2008, the EEOC affirmed the USTO's dismissal of Berry's complaint. The EEOC decision explained that it could not take jurisdiction over grievance settlement agreements made outside the EEO process—including those reached through a negotiated grievance process. EEOC Decision at 2.
On June 12, 2007, Berry filed a separate complaint with the Federal Labor Relations Authority (the "FLRA"), alleging that the USPTO had breached the Settlement Agreement. Def.'s Mem. in Supp. Ex. 3A. The FLRA investigated Berry's allegations and, in a letter dated October 30, 2007, stated that the "issuance of a complaint is not warranted." Def.'s Mem. in Supp. Ex. 3B at 1.
In 2007, Berry filed an Appeal with the Merit Systems Protection Board dealing with her reinstatement and with an allegedly withheld pay-grade increase. Def.'s Mem. in Supp. Ex. 4A-4B.
Plaintiff has also filed suit in the U.S. Court of Federal Claims (Action No. 08-330 C) and has filed a separate suit in the Eastern District of Virginia, raising different allegations of discrimination and retaliation (case number 1:08cv697).
Berry filed a Complaint in this Court on May 9, 2008. In the Complaint, she alleges that the USPTO breached the Settlement Agreement. While she acknowledges that the USPTO reinstated her, she claims that she was again discriminated against on account of her race and because she had filed prior EEOC claims. Compl. ¶ 2. The USPTO ultimately removed her, again, from her position as a Patent Examiner. Id. Specifically, Berry alleges that the USPTO breached its agreement with her by: (1) denying her training in new technology; (2) denying her "cursory review as required in her PAP Plan"; (3) not reinstating her to her previous status (by designating her termination period as Leave Without Pay); (4) taking away a pay increase because of her Leave Without Pay status; and (5) improperly shortening the period during which she should have received a new rating. Compl. ¶ 11.
Berry complains that she was denied the ability to reopen her case with the arbitrator because of racial discrimination and retaliation. Compl. ¶¶ 17-18. She asks this Court to direct the USPTO to re-open arbitration on her previous claim (FMCS No. 060120-016673) and require the EEOC to continue the hearing process on her previously-filed EEO Case (No. 570-2006-00210X). Compl. at 5.
On July 24, 2008, Defendant Gutierrez ("Defendant"), sued by Berry in his capacity as Secretary of the U.S. Department of Commerce, filed a motion to dismiss, along with the requisite Roseboro notice. Berry moved for an extension of time to allow her to file a responsive pleading and asked for court-appointed counsel. The Court granted her request for an extension. Berry filed a response in opposition on September 2, and Defendant filed a reply brief on September 8, 2008.
On Friday, September 12, Berry filed a motion for an extension of time to prepare for oral argument, and a motion for courtappointed counsel. Both motions were noticed for September 19, 2008, the same day as the hearing on Defendant's Motion to Dismiss. Defendant filed a response opposing both motions on September 17, 2008. Ruling from the bench, the Court denied Berry's motions at the hearing held on Friday, September 19. The Court reiterates and further supports its decisions on these two motions in this Memorandum.
After the hearing, Berry filed another response opposing the Defendant's Motion to Dismiss. Rather than strike the supplemental filing, the Court allowed Defendant to file an additional response. The parties' Motions are before the Court.
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. See Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). In deciding a motion to dismiss, "the material allegations of the complaint are taken as admitted," and "the complaint is to be liberally construed in favor of plaintiff." Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (citations omitted). In addition, a motion to dismiss must be assessed in light of Rule 8's liberal pleading standards, 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, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citation omitted).
Complaints filed by pro se plaintiffs are construed more liberally than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Khozam v. LSAA, Inc., Slip Copy, 2007 WL 2932817 at *3 (W.D.N.C.2007). While a court is not expected to develop tangential claims from scant assertions in a complaint, if a pro se complaint contains potentially cognizable claims, a plaintiff should be allowed to particularize these claims. Treadwell v. Murray, 878 F.Supp. 49, 51-52 (E.D.Va.1995) (citing Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.1985); Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir.1965)).
Pursuant to Rule 12(b)(1), 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. 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, 780-81 (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. Adams, 697 F.2d at 1219; King, 211 F.Supp.2d at 781. 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 (quoting 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...
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