Daniel v. Hagel
| Decision Date | 07 May 2014 |
| Docket Number | No. 13–cv–13200.,13–cv–13200. |
| Citation | 17 F.Supp.3d 680 |
| Parties | Thelma DANIEL, Plaintiff, v. Chuck HAGEL, Secretary of Defense, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Ronnie M. Strong, Detroit, MI, for Plaintiff.
Andrew J. Lievense, U.S. Attorney's Office, Detroit, MI, for Defendant.
This is an employment discrimination action brought by Thelma Daniel, a dual-status-military technician in the Michigan Air National Guard (“MIANG”), against United States Secretary of Defense Chuck Hagel. In her Complaint Daniel alleges that she was denied a promotion because of her gender and race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
Plaintiff first pursued her discrimination claim by filing an EEO complaint that was handled internally within the Department of Defense, then by requesting a hearing before an EEOC Administrative Judge. The AJ determined that Daniel had been the victim of race and sex discrimination, and, accordingly, entered an order awarding her, among other relief, damages which included both civilian and military back pay. The Department of Defense, however, maintained that the EEOC and the AJ lacked jurisdiction to order any relief, and, therefore, refused to comply with the order. Daniel, therefore, appealed to the EEOC Office of Federal Operations (“OFO”) for enforcement of the AJ's order. Although the OFO agreed with Defendant that the AJ could not force the DOD to provide Daniel with military back pay, the OFO upheld the relief ordered by the AJ arising from Daniel's civilian capacity. Defendant refused to comply and this lawsuit ensued.
In lieu of an Answer, Defendant filed the instant Motion to Dismiss Plaintiff's action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Plaintiff has responded and Defendant has replied.
Having reviewed and considered Defendant's Motion, the briefs filed by the parties in support of, and in opposition to, the motion, and the exhibits accompanying those briefs, the Court has determined that the relevant allegations, facts and legal arguments are adequately presented in these submissions, and that oral argument would not aid the decisional process. Therefore, the Court will decide this matter “on the briefs.” See Eastern District of Michigan Local Rule 7.1(f)(2). This Opinion and Order sets forth the Court's ruling.
Plaintiff Thelma Daniel is an African–American woman who has served in the Michigan Air National Guard at Selfridge Air National Guard Base as a dual-status military technician since 1989. In 2002, when the events giving rise to this action occurred, Daniel held the position of Flight Service Specialist, GS–09, and was assigned to Aviation Resource Management. Daniel also held the Air Force military rank of Master Sergeant, with a military pay grade of Enlisted 7 (“E–7”). See Daniel v. McHugh, 2012 WL 5178370 at *1 (E.E.O.C.2012).1
In September 2002, the MIANG posted a dual-status military technician vacancy announcement for a Flight Service Manager (“FSM”), a position that came with a higher military grade than Daniel held at the time. The vacancy announcement for the FSM position stated that the purpose of the position was “to manage, direct and oversee the operation of all airfield activities and facilities under the jurisdiction of the air base, and to coordinate as necessary with all applicable agencies, base flying activities and transient military aircrews and aircraft, as well as civilian aircraft utilizing Air National Guard (ANG) facilities.” See Defendant's Ex. 2, p. 8. The announcement also listed the following knowledge, skills and abilities as essential for successful performance of the position:
Daniel applied for the position; however, she was not selected. The five-member military selecting panel, headed by Colonel [now Brigadier General] Richard Eliot, selected another candidate, Master Sergeant Aaron Doty, a white male, to be promoted to the Flight Service Manager position.
Dissatisfied with the selection panel's decision, Daniel filed an EEO complaint with the Department of Defense on February 12, 2003. The complaint was investigated internally by the DOD's Atlanta Office of Complaints Investigation (“OCI”) and a report was issued. See Defendant's Ex. 2. The OCI concluded that while the evidence did not support the selection of Master Sergeant Doty as the “absolute best-qualified candidate for the position,” it found that MIANG management's promotion decision was “consistent and reflect [ed] legitimate nondiscriminatory reasons for [Daniel's] non-selection.” Id. at pp. 10–11.
Daniel thereafter pursued her discrimination claim by requesting a hearing before an EEOC Administrative Judge. In a June 2007 decision, the AJ found that Daniel had proven that the MIANG discriminated against her and did not select her for the Flight Service Manager position because of her race and sex. See Daniel v. McHugh, 2012 WL 5178370 at *1. As relief, the AJ ordered the MIANG to (1) pay Daniel $25,000 in non-pecuniary compensatory damages; (2) provide EEO training for MIANG officials; (3) promote Daniel from a GS–9 to GS–11 dual-status military technician, with back pay; (4) and promote Daniel to the rank of Senior Master Sergeant E–8 and pay her military back pay commensurate with the new rank.
Although the Defendant maintained that the EEOC and the AJ lacked jurisdiction to order any relief, in an attempt to resolve the matter, the MIANG took some of the measures ordered by the AJ–Daniel was promoted to a GS–11 Flight Services Manager position with an effective date of September 2, 2002, and to the military rank of Senior Master Sergeant. She also was paid $25,000 for compensatory damages and $30,169.02 for civilian back pay. Additionally, the MIANG provided EEO training to its officials. However, it did not pay Daniel any military back pay.
In July 2008, Daniel appealed the AJ's decision to the EEOC Office of Federal Operations, on the grounds that the MIANG had failed to comply with the AJ's decision and specifically taking issue with Defendant's failure to comply with the EEOC's order that MIANG pay her military back pay. Id. at *1–2. In response, MIANG argued that the EEOC did not have jurisdiction to order relief that is “irreducibly military in nature,” and, therefore, Daniel's complaint should be dismissed for failure to state a claim upon which relief can be granted. Id. at *2.
In October 2012, the OFO held that some of the relief ordered by the AJ was irreducibly military in nature “and therefore beyond the jurisdictional boundaries of the [EEOC] to enforce.” Id. at *2–3. Specifically, the OFO found that the AJ could not direct the MIANG to promote Daniel to a higher military rank or force the MIANG to provide Daniel with military back pay. Id. However, the OFO found that it could enforce the portion of the AJ's order arising from Daniel's civilian capacity. Id. Thus, it ordered the MIANG to provide Daniel with all “dual status civilian back pay information” [requested by Plaintiff to demonstrate how MIANG had calculated the amount of civilian back pay that she was entitled to] and required the MIANG to “consider taking appropriate disciplinary action against the responsible management officials for the underlying discrimination” and “report its decision to the EEOC compliance officer.” Id.2
On July 25, 2013, Daniel filed the instant lawsuit seeking redress because the Department of Defense and its subordinate agencies failed to comply with the EEOC's orders. As relief, Daniel seeks (1) declaratory or injunctive relief, including an order preventing the DOD from disregarding appropriate processing of EEO complaints in the future; (2) an order requiring the DOD to comply with the current EEOC order concerning her complaint; (3) sanctions against the DOD to deter future non-compliance; (4) damages in the amount of $300,000 for the underlying discrimination against her; and attorneys' fees and costs. See Amended Complaint, Dkt. # 4, p. 12.
Defendant now seeks dismissal of Plaintiff's Amended Complaint contending that this Court lacks subject matter jurisdiction over Plaintiff's claims.
As indicated above, Defendant's Motion to Dismiss presents a question concerning the Court's subject matter jurisdiction. There are two categories of motions to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) —facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack challenges the court's subject matter jurisdiction based upon the sufficiency of the pleadings. In considering a “facial attack,” a court will consider the material allegations of fact set forth in the complaint as being true and construe them in a light most favorable to the nonmoving party. Id.; Cooley v. United States, 791 F.Supp. 1294 (E.D.Tenn.1992) ; Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990).
By contrast, where, as here, subject matter jurisdiction is factually attacked, the plaintiff bears the burden of proving...
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