Hawthorne v. McCarthy, Case No.: 5:18-cv-00689-MHH

• Decision Date: 29 May 2020
• Docket Number: Case No.: 5:18-cv-00689-MHH
• Parties: DAVID HAWTHORNE, Plaintiff, v. RYAN D. MCCARTHY, Secretary of the Army, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

DAVID HAWTHORNE, Plaintiff, v. RYAN D. MCCARTHY, Secretary of the Army, et al., Defendants.

Case No.: 5:18-cv-00689-MHH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

May 29, 2020

MEMORANDUM OPINION AND ORDER¹

The United States Army has asked the Court to dismiss this federal-sector civilian employment discrimination action. (Docs. 83, 89).² So have the union defendants: David Cox, David Mollet, and Abner Merriweather. (Doc. 79). Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the defendants challenge this Court's subject matter jurisdiction over David Hawthorne's claims against them. And if the Court has jurisdiction, then the defendants ask the Court todismiss Mr. Hawthorne's claims pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons discussed in this opinion, the Court finds that it has jurisdiction over this matter. Pursuant to Rule 12(b)(6), the Court will grant the union defendants' motion to dismiss and will grant in part and deny in part the Army's motion to dismiss.³

I. STANDARD OF REVIEW

Rule 12(b)(1) enables a defendant to move to dismiss a complaint for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). In the absence of subject matter jurisdiction, a district court may not hear a case. Scarfo v. Ginsberg, 175 F.3d 957, 961 (11th Cir. 1999). Consequently, when a defendant pursues "a Rule 12(b)(1) motion [] in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam)).⁴

Attacks on subject-matter jurisdiction under Rule 12(b)(1) may be either facial or factual. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). "Facial attacks to subject matter jurisdiction require the court merely to look and see if the plaintiff's complaint has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335-36 (11th Cir. 2013) (citing Carmichael, 572 F.3d at 1279)); see also, McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). "Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact." McElmurray, 501 F.3d at 1251 (internal quotations and citations omitted). "[W]here a defendant raises a factual attack on subject matter jurisdiction, the district court may consider extrinsic evidence such as deposition testimony and affidavits." Carmichael, 572 F.3d at 1279. "In so doing, a district court may weigh the facts, and the court is "not constrained to view them in the light most favorable" to the plaintiff." Houston, 733 F.3d at 1336 (quoting Carmichael, 572 F.3d at 1279)).

Rule 12(b)(6) enables a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint against the "liberal pleading standards set forth by Rule 8(a)(2)." Erickson v. Pardus, 551 U.S. 89, 94(2007). Pursuant to Rule 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the requirement of Fed. R. Civ. P. 8(a)(2), a complaint need not contain 'detailed factual allegations,' but rather 'only enough facts to state a claim to relief that is plausible on its face.'" Maledy v. City of Enterprise, 2012 WL 1028176, *1 (M.D. Ala. March 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. at 93 (quoting Twombly, 550 U.S. at 555).

"Thus, the pleading standard set forth in Federal Rule of Civil Procedure 8 evaluates the plausibility of the facts alleged, and the notice stemming from a complaint's allegations." Keene v. Prine, 477 Fed. Appx. 575, 583 (11th Cir. 2012). "Where those two requirements are met . . . the form of the complaint is not significant if it alleges facts upon which relief can be granted, even if it fails to categorize correctly the legal theory giving rise to the claim." Id.

This is particularly true with respect to pro se complaints. Courts must liberally construe pro se documents. Erickson, 551 U.S. at 94. "'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson, 551 U.S. at 94 (quoting Estelle v.Gamble, 429 U.S. 97, 106 (1976)); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) ("Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed."). Cf. Fed. R. Civ. P. 8(e) ("Pleadings must be construed so as to do justice."). Still, a district court "may not serve as de facto counsel for a party, or ... rewrite an otherwise deficient pleading in order to sustain an action." Ausar-El ex. rel. Small, Jr. v. BAC (Bank of America) Home Loans Servicing LP, 448 Fed. Appx. 1, 2 (11th Cir. 2011) (internal quotations and citations omitted).

When evaluating a Rule 12(b)(6) motion to dismiss, a district court accepts as true the factual allegations in the complaint - or in this case, the amended complaint - and construes the factual allegations in the light most favorable to the plaintiff, McCullough v. Finley, 907 F.3d 1324, 1330 (11th Cir. 2018), but "conclusory allegations . . . are not entitled to an assumption of truth—legal conclusions must be supported by factual allegations," Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). Accordingly, in this opinion, the Court presents the factual allegations in the amended complaint in the light most favorable to Mr. Hawthorne and draws all inferences from the factual allegations in his favor. As the case proceeds, the evidence may, or may not, differ from the factual allegations in Mr. Hawthorne's amended complaint.

II. ALLEGATIONS IN THE AMENDED COMPLAINT

Mr. Hawthorne is an engineer and a civilian federal employee at the United States Army Sustainment Command located at Redstone Arsenal near Huntsville, Alabama. (Doc. 73, p. 2, ¶ 1). Mr. Hawthorne is a member of both the American Federation of Government Employees, a national union that represents government workers, and the local chapter of that union, Local 1858 which is part of District 5 of the national union. (Doc. 73, p. 3, ¶ 7). (Doc. 73, p. 7, ¶ 23).

A. Alleged Sexual Harassment by Abner Merriweather

Mr. Hawthorne contends that Abner Merriweather, the president of Local 1858, and an employee of the Army's Aviation and Missile Research Development and Engineering Center, sexually harassed him and subjected him to a hostile work environment. (Doc. 73, p. 2, ¶ 1). Mr. Hawthorne alleges that Mr. Merriweathwr began harassing him on March 20, 2017. (Doc. 73, p. 3, ¶ 2). On that date, Mr. Merriweather asked Mr. Hawthorne to accompany him to a casino in Mississippi. (Doc. 73, p. 3, ¶ 2). Mr. Hawthorne "told [Mr. Merriweather] no, and went on to say that [Mr. Merriweather] should take his lady to that event, and not to ask [Mr. Hawthorne] about such a thing." (Doc. 73, p. 3, ¶ 2).

On May 8, 2017, Mother's Day, Mr. Merriweather sent a group text to Mr. Hawthorne, and others, that said "Happy Mother's Day." (Doc. 16-8, p. 7; Doc. 73,p. 3, ¶ 3).⁵ Mr. Hawthorne responded by text: "Abner I know you play a lot, but I don't like the gay jokes in any form or fashion. There is nothing funny, playful or amusing about what you just said . . . Leave me out of the gay jokes . . . ." (Doc. 16-8, p. 7; Doc. 73, p. 3, ¶ 3). Mr. Merriweather apologized and wrote that "he would never do anything like that again." (Doc. 73, p. 3, ¶ 3).⁶

During a May 20, 2017 phone conversation with Mr. Hawthorne, Mr. Merriweather asked Mr. Hawthorne to come to Mr. Merriweather's home and cook for Mr. Merriweather. (Doc. 73, p. 3, ¶ 4). Mr. Hawthorne alleges that he

explicitly told [Mr. Merriweather] that he needed to ask his lady to do that and not to be asking me about such things. I told him that it sounded like a gay request, and that a man should ask his lady or a lady should ask her man to do those things. I went on to tell him that he should not be asking me and to stop.

(Doc. 73, p. 3, ¶ 4).

At a bar on May 22, 2017, Mr. Merriweather approached Mr. Hawthorne and began telling another nearby patron that Mr. Merriweather had asked Mr. Hawthorne "to go on a cruise with him." (Doc. 73, p. 3, ¶ 5). Mr. Hawthorne immediately walked away from Mr. Merriweather and the patron. (Doc. 73, p. 3, ¶ 5). The next day, Mr. Hawthorne sent Mr. Merriweather a text saying that Merriweather knew that "he did not ask me and/or my lady to go on a cruise with him . . . and not to lie on me or even ask me such a thing." (Doc. 73, p. 3, ¶ 5). That same day, Mr. Merriweather responded by texting an apology "for lying," and "said he would not do that again." (Doc. 73, p. 3, ¶5). Later, by text, Mr. Merriweather called Mr. Hawthorne "too sensitive." (Doc. 73, p. 3, ¶ 5).

On May 26, 2017, at the Local 1858 office, Mr. Merriweather asked Mr. Hawthorne to accompany Mr. Merriweather on a cruise for just the two of them. (Doc. 73, p. 3, ¶6). Mr. Hawthorne declined and told Mr. Merriweather "not to ask me something like that because . . . that is something a person ask[s] of their companion." (Doc. 73, p. 3, ¶ 6).

Mr. Hawthorne was recruiting new union members at a local bar on May 30, 2017, when Mr. Merriweather approached and...