Hawkins v. Esper

Decision Date13 November 2019
Docket NumberCivil Action Number 5:18-cv-00127-AKK
CourtU.S. District Court — Northern District of Alabama

Rickey Hawkins, proceeding pro se, brings this action against Mark T. Esper, as Secretary for the Department of the Army,1 HQAMC/LOGSA, a sub-agency of the United States Army, and HQAMC/LOGSA supervisors Mark Witt, Danny Bordeaux, and Fred Willis. See doc. 19. Hawkins alleges claims, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, for employment discrimination on the bases of race, color, gender, disability, and retaliation. Id. at 3. The Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). See doc. 26. The motion is fully briefed, doc. 36, and ripe for review. For the reasons stated below—in particular Hawkins' failure toproperly serve Secretary Esper, because Hawkins cannot sue a sub-agency of the Army or his supervisors, and because Hawkins failed to exhaust his claims against the Secretary—the motion is due to be granted.


Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citing Bell Atl. Corp., 550 U.S. at 557).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw thereasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Bell Atl. Corp., 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level"). Ultimately, this inquiry is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. Additionally, because Hawkins is proceeding pro se, the court must construe the complaint more liberally than it would pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) ("Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.").


Hawkins, an African-American man, doc. 19 at 24, had worked as a civilian employee for the Army for thirty years and as a Senior Leader for eighteen years when he approached his Equal Employment Opportunity Commission officer with complaints of discrimination, harassment, and disparate treatment on the basis ofrace. Id. at 20. Ultimately, Hawkins filed six complaints with his EEOC office between January 2016 and October 2017. Doc. 7 at 13. Four of these complaints are at issue in this case.

In his first complaint, EEO Complaint 289, Hawkins alleged claims against his supervisors, Defendants Mark Witt and Danny Bordeaux, as well as a "Mr. Dwyer," all white men, for discrimination, harassment, disparate treatment, and retaliation. Doc. 19 at 20. Allegedly, in response to this initial complaint, Hawkins' supervisors began to "come after [him]," creating a "toxic environment" and "forc[ing him] . . . to take another position." Id. Based on this alleged conduct, Hawkins sought mental health care for stress, and his psychologist advised him to avoid his workplace. Id. In keeping with this advice, Hawkins used "[his] personal leave . . . in order not to have a nervous breakdown at work." Id.

This complaint was ultimately resolved through a Negotiated Settlement Agreement through which Hawkins received a new supervisor. Docs. 26-1 at 4. But, Hawkins alleged thereafter that one of his former supervisors breached the terms of the Agreement by informing the new supervisor, Defendant Fred Willis, of Hawkins' past complaint. Doc. 19 at 20. After investigation, the Army issued a Final Agency Decision finding no breach, see doc. 26-5, and the Office of Federal Operations (OFO) affirmed, doc. 26-1 at 3-4.

The incidents at issue in Hawkins' second complaint, EEO Complaint 2385,concerned the conduct of the new supervisor, Willis. Doc. 19 at 20. Allegedly, after a conversation with Hawkins' previous supervisor, Willis "began to treat [Hawkins] differently." Id. at 21. For example, when Hawkins inquired about an alternate work schedule, Willis told him, "we don't do that here." Id. When Hawkins showed Willis that the collective bargaining agreement allowed for such a schedule, Willis "became very agitated," and his treatment of Hawkins worsened. Id.

As to this second complaint, the EEO Office provided Hawkins a Notice of Right to File a Formal Complaint of Discrimination, which "contains clear and unambiguous filing instructions," including a directive to file a complaint within fifteen calendar days of receiving the Notice. Doc. 19 at 24. Despite the clear notice, Hawkins waited twenty-nine days to file his formal complaint. Doc. 26-2 at 3. The Army dismissed the complaint as untimely, doc. 26-6 at 1-2, and the OFO affirmed and denied Hawkins' request for reconsideration, doc. 26-2 at 4.

Hawkins' third complaint, EEO Complaint 382, involved Willis' alleged increasingly poor treatment of him. See id. Allegedly, Willis held Hawkins to different standards than other employees by requiring Hawkins to report his breaks, demanding that Hawkins utilize his leave when he arrived a few minutes late to work, and delaying Hawkins' leave forms, causing him to miss a family funeral. Id. Willis also gave Hawkins a three out of five on an annual performance review, and when the union requested that Willis substantiate the rating by producing evidenceof counseling and training he directed at Hawkins in response to this allegedly poor performance (which he could not do), Willis "became more agitated." Id. Hawkins had never received such a low rating previously, and the rating has created serious consequences for his career. Id.

Hawkins subsequently received his Notice of Right to file a formal EEO complaint as to this third complaint. Doc. 26-3 at 3. Hawkins filed his formal complaint eighteen days later, and EEO dismissed it as untimely after finding "ample proof" that Hawkins "was in possession of the Notice of Right to File a Formal Complaint of Discrimination." Doc. 26-7 at 1-2. The OFO affirmed the dismissal. See doc. 26-3 at 4.

Hawkins filed his final complaint, EEO Complaint 1953, against his co-worker, Diana Willis. Doc. 19 at 16. Leading up to this complaint, Hawkins' co-workers mocked the fact that they had to undergo sensitivity training in response to Hawkins' previous complaints. Id. Some of the co-workers criticized the training and the underlying complaints, with one asking, "why do we have to do this BULLSHIT, I have been here . . . for 10+ [years] and never had to do this bull shit," and another responding, "some punk went w[h]ining and now we have to do this." Id. For her part, Willis had not spoken to Hawkins for eight months, and yet one morning, while Hawkins was speaking with a co-worker, id. at 18, Willis entered the room, greeted Hawkins' co-workers, and then demanded of Hawkins, "what isgoing on with this BS behind me[?]," id. at 16. Hawkins maintains that Willis' statement was a reference to the co-workers discussing the sensitivity training. Id. Hawkins immediately left the room and filed his complaint before taking leave to avoid the "[t]oxic [e]nvironment and [h]arassment." Id. After receiving his Notice of Right to file a formal EEO complaint against Diana Willis, Hawkins waited until sixteen days later to file his complaint. Doc. 26-4 at 3. The EEO office dismissed it as untimely. Doc. 26-8 at 1-2.

Hawkins subsequently filed this lawsuit, seeking to litigate the claims that form the basis of the four EEOC complaints.


Defendants move to dismiss on three grounds: (1) lack of subject-matter jurisdiction over Mark Witt, Danny Bordeaux, and Fred Willis pursuant to Fed. R. Civ. P. 12(b)(1), (2) insufficient service of process on Secretary Mark Esper pursuant to Fed. R. Civ. P. 12(b)(5); and (3) failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). The court notes that Hawkins failed to address these contentions in his response to the Defendants' motion, and instead simply realleged the claims in his complaint. See doc. 36. Consequently, Hawkins has abandoned these claims, and they are "due to be dismissed on those grounds alone." See e.g., Collins v. Davol, Inc., 56 F. Supp. 3d 1222, 1228 (N.D. Ala. 2014) (citing Fischer v. Fed. Bureau of Prisons, 349 F. App'x. 372, 375 n. 2 (11th Cir.2009)). Still, the court will discuss the Defendants' various contentions in support of their motion below.

A. Whether the Court Lacks Subject-Matter Jurisdiction over Mark Witt, Danny Bordeaux, ...

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