Francis-Howard v. Spencer
| Decision Date | 05 December 2022 |
| Docket Number | W-20-CV-00657-ADA-DTG |
| Parties | CAMILLE FRANCIS-HOWARD, Plaintiff, v. RICHARD SPENCER, SECRETARY, DEPARTMENT OF THE ARMY; Defendant. |
| Court | U.S. District Court — Western District of Texas |
THE HONORABLE ALAN D ALBRIGHT UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS [ECF NO. 9] AND MOTION FOR SUMMARYJUDGMENT [ECF NO. 16]
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 49b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant Richard Spencer's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) filed on December 7, 2020 (ECF No. 9) (the “Motion to Dismiss”) and Motion for Summary Judgment filed on September 2, 2021 (ECF No. 16) (the “Summary Judgment Motion”).
After careful consideration of the Motion to Dismiss, the Parties' briefs, and the applicable law, the undersigned recommends the Motion to Dismiss be DENIED.
After careful consideration of the Summary Judgment Motion, the Parties' briefs and evidence, and the applicable law, the undersigned recommends the Summary Judgment Motion be DENIED as to Plaintiff's failure to accommodate claim and be GRANTED as to all of Plaintiff's other claims.
Plaintiff Camille Francis-Howard (“Plaintiff” or “Howard”) filed this lawsuit accusing Defendant Richard Spencer, Secretary, Department of the United States Army (“Defendant” or “Army”) of violations of Title VII of the Civil Rights Act of 1964 and Sections 501 and 505 of the Rehabilitation Act of 1973. ECF No. 6 at 1. Defendant filed the Motion to Dismiss, alleging that this Court lacks jurisdiction. ECF No. 9 at 1. Plaintiff filed an opposition to the Motion to Dismiss on December 21, 2020 (ECF No. 12); a reply was filed on March 4, 2021 (ECF No. 14); and the Court heard oral argument on June 27, 2022. Each party then submitted a supplemental memorandum after the hearing. See ECF Nos. 26 & 27.
The Motion to Dismiss arrived at this Court without a final Army decision and without a decision on the merits by the Equal Employment Opportunity Commission (“EEOC”). On August 29, 2016, Plaintiff filed a formal complaint for discrimination based on race, sex, and disability (mental) regarding her non-selection for promotion with the Department of the United States Army. ECF No. 6 ¶ 8. The Army issued a Report of Investigation (“ROI”) on February 2, 2017. Id. The Army alleges that it advised Plaintiff of her two options-seek a final Army decision or seek a hearing before an EEOC administrative law judge-and provided Plaintiff a form she could use to request a final agency decision. ECF No. 9 at 1-2;ECF No. 9-1. Plaintiff alleges that she did not seek a final agency decision but instead requested a formal hearing before an EEOC administrative law judge on February 13, 2017. ECF No. 6 ¶ 8. Plaintiff contends that the EEOC administrative law judge issued a decision without a hearing. Id.
The Army counters that when it filed a motion for summary judgment before the EEOC, Plaintiff failed to respond and indicated she would seek a final agency decision. ECF No. 9 at 2;ECF No. 9-4. Shortly after, the EEOC administrative law judge dismissed the case on April 10, 2019, indicating that Plaintiff requested a Final Agency Decision. ECF No. 9 at 2 & 9-2 at 2.
Finally on November 2, 2020, Plaintiff filed the present suit and alleged that she complied with all procedural requirements. ECF No. 1 at 2-3.
The Motion to Dismiss is Defendant's second motion to dismiss. Defendant filed a first motion to dismiss on October 19, 2020. ECF No. 5. In response, Plaintiff filed her First Amended Complaint on November 2, 2020. ECF No. 6. The First Amended Complaint mooted Defendant's first motion to dismiss, and on December 7, 2020, Defendant filed the present Motion to Dismiss. ECF No. 9.
In the Motion to Dismiss, Defendant asserts several grounds it alleges justify dismissing Plaintiff's Amended Complaint. First, Defendant contends all of Plaintiff's claims are time barred. Second, Defendant contends that Plaintiff names the wrong defendant. Third and finally, Defendant contends that Plaintiff failed to perfect proper service of the Defendant. Id.
For the following reasons, the Court recommends that the Motion to Dismiss be DENIED.
The law governing a motion to dismiss is well-settled. A court must dismiss a complaint if it lacks subject matter jurisdiction. Willoughby v. U.S. ex rel. U.S. Dep't of the Army, 730 F.3d 476, 479 (5th Cir. 2013). The plaintiff has the burden to show subject matter jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). The district court can dismiss for lack of subject matter jurisdiction based on: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
As no objections have been lodged against any of the exhibits to Defendant's Motion, this Court will consider all of the exhibits as true, correct, and establishing undisputed facts of those facts cited in this Report and Recommendation.
The governing statute states who the proper defendant should be. When a plaintiff commences an action under Title VII of the Civil Rights Act of 1964, she must name as the defendant the current head of the executive agency that employs her. 42 U.S.C. § 2000e-16(c); 5 U.S.C. §§ 101, 105. If the plaintiff names the wrong defendant, the court may allow her to amend her complaint and add the proper party. Fed.R.Civ.P. 15(a)(2). Under Rule 15(c), such an amendment would relate back to the original filing date. Fed.R.Civ.P. 15(c). When an amendment relates back to the original pleading, the plaintiff is deemed to have timely filed against the correct defendant. Id.
Defendant's Motion to Dismiss implicates Federal Rule of Civil Procedure 4. Under Rule 4(m), if the defendant does not receive service within 90 days after the plaintiff files the complaint, then the court must dismiss the action without prejudice. Fed.R.Civ.P. 4(m). If the plaintiff shows good cause for the failure, however, then the court must extend the time for service. Id. Even if the plaintiff fails to show good cause, the court may use its discretion to extend time for service. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).
Defendant contends Plaintiff's suit was untimely. Defendant argues that the EEOC's order of dismissal constitutes a final agency decision under 29 C.F.R. § 1614.109(i) (“[i]f an agency does not issue a final order within 40 days of receipt of the administrative judge's decision in accordance with 1614.110, then the decision of the administrative judge shall become the final action of the agency.”) Defendant contends that Plaintiff had ninety days from receipt of the final action to file her complaint in this Court. 29 C.F.R. 1614.402(a).
Plaintiff contends that her request was timely. Plaintiff contends that she withdrew her request for an EEOC hearing to obtain a final agency decision. ECF No. 12 at 3;ECF No. 12-1. Plaintiff notes that the order of dismissal did not contain a decision on the merits nor notice of Plaintiff's time limit for filing an appeal or a civil action. Id. at 5; see also ECF No. 9-2 at 2. Additionally, Plaintiff contends that the order for dismissal failed to inform her of the proper defendant to name in a civil action. ECF No. 12 at 5. Plaintiff contends that these deficiencies prevented the decision from qualifying as a final order or Final Agency Decision. Id. at 4-5. Plaintiff concludes that she has yet to receive a Final Agency Decision, that no one entered a final order within forty days of the administrative law judge's decision, and therefore Plaintiff was allowed to file this suit after 180 days had passed from the filing of the complaint with the agency. Id. at 5; see also 29 C.F.R. § 1614.407(b).
In this case, there was no final decision on the merits. The timing requirements of 29 C.F.R. § 1614.110(a) imply that an administrative law judge will have decided the case on its merits; otherwise, the agency would have nothing to “implement.” See Laudadio v. Johanns 677 F.Supp.2d 590, 604 (E.D.N.Y. 2010). A dismissal of a claim upon a complainant's request, however, is not a decision on the merits. Id. Instead, a complainant who “withdraws his request for an EEOC hearings'effectively requests an ‘immediate final decision' requiring the [a]gency to issue a final decision with findings on the merits of each issue in the complaint.'” See id. (citing Hunter v. Keisler, No. 06-CV-5908 (RBK), 2007 WL 3171223 at *4 (D.N.J. Oct. 26, 2007)). Though the administrative law judge's decision may become the final action of the agency if the agency is inactive, it does not excuse the decision from complying with finality requirements. 29 C.F.R. § 1614.109(i); Laudadio, 677 F.Supp.2d at 604. Allowing administrative law judge decisions to automatically initiate the applicable statute of limitations without providing the notices of 29 C.F.R. § 1614.110(a) frustrates the very purpose of the regulation. Staropoli v. Donahoe, 786 F.Supp.2d 384, 390 (D.D.C. 2011). The plain language of the Civil Rights statute also confirms that plaintiffs are entitled to bring suit once 180 days have elapsed since their initial complaint. 42...
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