Foxx v. Dalton

• Citation: 46 F.Supp.2d 1268
• Decision Date: 14 April 1999
• Docket Number: No. 98-1043-CIV-T-17B.,98-1043-CIV-T-17B.
• Parties: George J. FOXX, Plaintiff, v. John H. DALTON, Secretary of the Navy, Defendant.
• Court: U.S. District Court — Middle District of Florida

Page 1268

46 F.Supp.2d 1268

George J. FOXX, Plaintiff, v. John H. DALTON, Secretary of the Navy, Defendant.

No. 98-1043-CIV-T-17B.

United States District Court, M.D. Florida, Tampa Division.

April 14, 1999.

COPYRIGHT MATERIAL OMITTED

George J. Foxx, Tampa, FL, pro se.

Steven A. Nisbet, U.S. Attorney's Office, Middle District of Florida, Tampa, FL, for defendant.

ORDER ON MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR CHANGE OF VENUE

KOVACHEVICH, Chief Judge.

This cause is before the Court on the Motion to Dismiss of Defendant Department of the Navy (Dkts.8-9), which seeks to dismiss all six counts of Plaintiff's Complaint. Alternatively, Defendant's motion seeks a change of venue from the Middle District of Florida to the Eastern District of Virginia. Plaintiff named Secretary of the Navy, John Dalton, as the head of the Department in accordance with 42 U.S.C.A. § 2000e-16. Plaintiff filed a Response to Defendant's Motion (Dkt.10).

STANDARD OF REVIEW

A. Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the Plaintiff's Complaint to determine whether it sets forth sufficient allegations to establish a claim for relief. Under Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), a district court should not dismiss a complaint for failure to state a claim solely on the pleadings "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Additionally, when deciding a motion to dismiss, a court must accept the truthfulness of well-pleaded facts and resolve them in the light most favorable to the Plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Beck v. Deloitte et al., 144 F.3d 732, 735-36 (11th Cir.1998) (quoting St. Joseph's Hosp. Inc. v. Hospital Corp. of America, et al., 795 F.2d 948 (11th Cir.1986)).

Plaintiff is pursuing his claim pro se. As such, his pleadings are held to a less stringent standard than those of an attorney. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998). However, "this leniency does not give court license to serve as de facto counsel for party, see Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991), or to rewrite an otherwise deficient pleading in order to sustain action." GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998). Using this standard, the Court turns to the consideration of the claims asserted.

BACKGROUND

The following allegations, taken from the Complaint and its attached exhibits, are considered true for the present purpose of deciding whether to dismiss Plaintiff's Complaint. See Beck, 144 F.3d at 735.

Plaintiff, George J. Foxx was a vested employee of Defendant Department of the Navy (Navy), from 1972 to 1990. While employed with the Navy, Plaintiff was offered a position as a Supervisory Computer Programmer Analyst at the U.S. Naval Station Panama Canal. Plaintiff alleges that this offer was proposed to him over the phone by one Lt. Cdr. K.C. Purdy, and was accompanied by a promise of promotion after six months service. Plaintiff accepted the offer and worked in Panama for a total of nine months before his discharge.

While working at the Naval station, Plaintiff allegedly experienced racial discrimination directed towards him by Navy personnel. The discrimination came to a head when Plaintiff was fired for allegedly filing a false travel voucher. Although Plaintiff received notice of the Navy's intent to discharge him, with no final action to occur for 30 days, he was removed just four days later. In addition, Plaintiff was forced off the station property by the threat that he must "leave by sundown or be arrested." (Compl.¶ 14.) As such, Plaintiff was left without transportation to the airport at a time when there were safety restrictions on travel.

Plaintiff further contends that the Navy repeatedly refused to forward his personal and household belongings following his dismissal. Moreover, when Plaintiff finally received his property eighteen months later, he found that it had incurred more than $14,000 worth of damage.

Plaintiff contends that he also was promised an award for his participation in "Operation Just Cause." However, he never received this award, allegedly for discriminatory reasons. Additionally, Plaintiff asserts that the Navy withheld documents and intentionally misrepresented information in violation of his federal rights.

After his discharge, Plaintiff requested reconsideration. The decision to discharge was affirmed by Commander R.A. Kelly. Upon a series of appeals to an Administrative Law Judge of the Merit Systems Protection Board and the Equal Opportunity Commission's Office of Review and Appeals, Plaintiff's claim of discharge involving discriminatory animus was repeatedly dismissed.

Instead of appealing the final administrative decision in a federal court, Plaintiff sought a trial de novo on all his claims as was his right under 5 U.S.C. § 7703(b)(2) (Foxx II). See Foxx v. Garrett, No. 92-2276, 1993 WL 336095, at *1 (4th Cir.1993) (unpublished decision) (Foxx III). Counts I and II of this action alleged violations of Title VII with respect to a racially motivated discharge and failure to promote. See id. "Count III alleged violations of due process rights secured by 5 U.S.C. § 4303 and the Fifth Amendment in the failure to afford Plaintiff proper predetermination notice of, and opportunity to respond to, the charges against him." Id. The dismissal of all claims asserted in Plaintiff's Complaint was affirmed by the Fourth Circuit in Foxx III. See id.

Subsequent lawsuits were filed by Plaintiff with regard to alleged debts surrounding a breach of a transportation agreement. In Foxx v. Secretary of the Navy, No. 94-660-A (E.D.Va. filed Aug. 8, 1994) (Foxx IV) and Foxx v. Secretary of the Navy, No. 94-661-A (E.D.Va. filed Aug. 8, 1994) (Foxx V), the suits were "dismissed without prejudice to [P]laintiff's right to seek redress in an administrative or judicial forum other than this Court." The final lawsuit pertaining to the transportation agreement was Foxx v. United States, No. 94-507 C (Fed.Cl. filed May 8, 1996) (Foxx V). A Stipulation for Entry of Judgment was entered on May 2, 1996. This Stipulation provided for a payment of $4,000, to Plaintiff and included an agreement not to pursue claims arising from the transportation agreement in any other judicial or administrative forum.

Plaintiff then filed a Complaint with the Defendant agency on June 5, 1996. Additionally, Plaintiff requested reconsideration of the EEOC's 1991 decision in April of 1996. After a series of appeals, Plaintiff's request was ultimately ended by the denial of his final request for reconsideration dated May 7, 1998. Plaintiff filed the present suit in the Middle District of Florida on May 13, 1998.

Plaintiff's allegations in the present Complaint are ambiguous; therefore, it is necessary to delineate the claims. Under Downing v. New Mexico State Supreme Court, 339 F.2d 435, 436 (10th Cir.1964), a liberal construction of the pleadings is called for when drafted by a layperson. Plaintiff's Complaint alleges as follows:

Count I

1. Wrongful discharge (1990) (Compl.¶ 12.)

2. Defendant placed in eminent danger (1990) (Compl.¶ 13.)

3. Failure to follow procedure in termination of Plaintiff (1990) (Compl.¶ 14.)

4. Refusal to forward Plaintiff's household goods and subsequent damage thereto as acts of reprisal (1990-91) (Compl.¶ 15.)

5. Discriminatory refusal to deliver award to Plaintiff for participation in "Operation Just Cause." (1990) (Compl.¶ 16.)

6. Racial discrimination and disparate treatment while working for Defendant (1990) (Compl.¶ 17.)

7. Refusal to award promised promotion to Plaintiff (1990) (Compl.¶ 18.)

8. Destruction and inhibition of 401 compelled documents (1989-90) (Compl.¶ 19.)

9. Destruction and inhibition of transportation agreement (1994-96) (Compl.¶ 19.)

10. Intentional misrepresentation of material information (1990) (Compl.¶ 20.)

Count II

1. Allegation that Defendant did not conduct a complete and fair investigation of the Complaint as required under 29 C.F.R. §§ 1614.106(d)(2), 1614.110, 1614.108(b), and 1614.108(c)(3) (1996) (Compl.¶ 24.)

2. Final decision by Defendant was not on the merits (1996) (Compl.¶ 24.)

Count III

1. Defendant conspired to breach settlement agreements by claiming res judicata before a lawful authority (1996) (Compl.¶ 28.)

2. Failure to comply with Court's order and refusal of presentation by Plaintiff of compromise settlement agreement (1994) (Compl.¶ 29.)

Count IV

1. Conspiracy to interfere with a claim before the EEOC (1996) (Compl.¶ 31.)

Count V

1. Obstruction of Plaintiff's right under 29 C.F.R. § 1614.109 to a hearing (1996) (Compl.¶ 34.)

Count VI

1. Errors and omissions and misapplication of facts based on deceitful acts of the Defendant (1997-98) (Compl.¶ 38-41.)

MOTION TO DISMISS

A. Res Judicata

Defendant moves to dismiss Plaintiff's Complaint under the doctrine of res judicata. See Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195 (1876). Defendant asserts that all issues raised in Count I of the Complaint were the subject of Foxx II and III and in subsequent suits before the Court of Federal Claims (Foxx V).

Plaintiff argues against res judicata by alleging that Defendant lied to and deceived the Eastern District of Virginia and the Fourth Circuit. Additionally, Plaintiff provides a 1990 determination by the Florida Department of Labor and Employment Security, Division of Unemployment Compensation, that Plaintiff's discharge (in Panama) was for reasons other than misconduct.

Plaintiff also quotes the Court's determination in Foxx I to transfer venue instead of dismissing. From this, Plaintiff draws that the Court "had a clear vision of the facts of the case and determined [P]laintiff['s] case had merit indeed and DENIED dismissal." (Pl's.Resp.Mot....