Heimberger v. Pritzker
| Decision Date | 17 March 2014 |
| Docket Number | Case No. 2:12-CV-01064 |
| Parties | DEBRA A. HEIMBERGER, Plaintiff, v. PENNY PRITZKER, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION & ORDER
This matter is before the Court on Defendants Penny Pritzker,1 Secretary of the United States Department of Commerce, Census Bureau; United States of America, Department of Commerce; and Rick Essex's (collectively "Defendants") Motion to Dismiss pro se Plaintiff Debra Heimberger's Second Amended Complaint in its entirety (Doc. 46). Defendants argue that the Court lacks subject matter jurisdiction to hear Plaintiff's Federal Tort Claims Act ("FTCA") claims, and that Plaintiff has failed to state a claim on which relief may be granted under either Ohio tort law or Title VII sexual harassment or retaliation. Plaintiff opposes, and further moves partially to strike Defendant's Motion to Dismiss (Doc. 49) and to disqualify the Department of Justice from representing Defendant Essex (Doc. 57).
For the reasons stated herein, Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. Plaintiff's Motion to Strike is DENIED, and Plaintiff's Motion to Disqualify is DENIED.
Plaintiff commenced this action on November 19, 2012. (Doc. 2). On January 14, 2013, Plaintiff filed her First Amended Complaint (Doc. 11). In response, on February 11, Defendants filed their first Motion to Dismiss, for lack of subject-matter jurisdiction and for failure to state a claim. (Doc. 20). In addition, the United States Attorney, acting pursuant to 28 U.S.C. § 2679(d), certified that Defendant Essex was acting within the scope of his employment at the time of the incidents alleged by Plaintiff; accordingly, the United States was substituted as the defendant with regard to Plaintiff's claims against Defendant Essex individually, thereby converting those claims into claims under the FTCA. (Doc. 25; Doc. 25-1). On March 8, the United States also filed a Motion to Dismiss. (Doc. 26).
On June 13, 2013, the Magistrate Judge granted Plaintiff's Motion for Leave to File her Second Amended Complaint (Doc. 34), which added additional allegations against Defendant Essex. The Magistrate Judge denied Defendants' Motions to Dismiss as moot, with leave to refile. (Doc. 41). The Magistrate Judge also invited the United States Attorney to re-evaluate whether certification under 28 U.S.C. § 2679(d) was still appropriate in light of the Second Amended Complaint. (Id. at 4).
Plaintiff's Second Amended Complaint was filed June 13, 2013 (Doc. 42), and Defendants' filed the Motion to Dismiss sub judice on July 12 (Doc. 46). Plaintiff opposed (Doc. 50), and also filed her Motion to Strike (Doc. 49). On September 24, Plaintiff filed her Motion to Disqualify the Department of Justice from representing Defendant Essex (Doc. 57).
All motions have been fully briefed, and are ripe for review.
Plaintiff brings her claims for sexual harassment and sex discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII"), the Federal Tort Claims Act, 28U.S.c. § 2671 et seq. ("FTCA"), and Ohio tort law (Second Amended Complaint, Doc. 42), arising out of her employment at the United States Department of Commerce, Bureau of the Census, during the 2010 election season.
Plaintiff was hired by the Census Bureau on April 27, 2010, to work as an Enumerator. Plaintiff alleges that, during the course of her employment, her supervisor, Defendant Rick Essex, sexually harassed her while she worked for him, ultimately resulting in her termination when she refused his advances. Plaintiff alleges, specifically, that she met Essex for the first time on July 2, 2010, when Essex became "crew leader" for Crew Number 206 in the Columbus area. (Second Amended Complaint, Doc. 42, ¶ 13). Essex began encouraging and, eventually, pressuring Plaintiff to become his "Crew Leader Assistant." (Id., ¶¶ 16-19). Plaintiff eventually agreed, and became a Crew Leader Assistant on July 7, 2010. (Id., ¶¶ 20-21).2
Throughout this time, according to Plaintiff, Essex repeatedly asked Plaintiff to go on dates with him. (Id., ¶ 22). When she refused, Essex responded that she owed him a date, in exchange for her being promoted to Crew Leader Assistant. (Id., ¶¶ 22, 40). Plaintiff further alleges a number of comments or actions by Essex: Essex allegedly told Plaintiff that she is "well put together" and "easy on the eyes (id., ¶¶ 28, 82); called another co-worker "kitty cat" (id., ¶ 31); told crew members that his name had "sex" in it ¶ (id., ¶ 42); asked Plaintiff for her home address (id., ¶ 35); offered to visit her at her deceased grandmother's home in Fostoria, Ohio, and do carpentry work there free of charge (id., ¶¶ 37-38, 83); asked if she wanted to go with him on a boat ride in Michigan (id., ¶ 37); suggested Plaintiff wear shorts to work (id., ¶ 43); deviated from Census Bureau business to drive, with Plaintiff, to Best Buy to pick up hispersonal computer (id., ¶ 44); took Plaintiff's bruised hand and massaged it, telling her he could "make it better" (id., ¶ 46); put his arm and hand in Plaintiff's way, causing her to touch him (id., ¶ 45); talked about his daughter and his personal interests, drove Plaintiff past his childhood home, and took her to Dairy Queen (id., ¶ 47); bought a fruit smoothie and offered to share it with Plaintiff, showed her photos from a cruise he had taken, told her all he needed to pack for a cruise was a speedo, and asked her to attend a music fest after a crew meeting (id., ¶¶ 48-51); gave her a book and photograph from his cruise and sent her his favorite poem (id., ¶¶ 54-55); asked her out on dates and for a commitment to a relationship (id., ¶¶ 58, 81, 85); showed up uninvited at restaurants where Plaintiff was grading papers (id., ¶ 86), and made calls to her on July 19, 2010 (id., ¶ 88), leading Plaintiff to experience distress and feel as if she was being stalked (id., ¶ 86).
Plaintiff alleges throughout this period, she resisted all of Essex's advances. (Id., ¶ 63). She states that when she informed Essex that she did not feel comfortable being alone with him, he insisted that he was her supervisor and she would do as he told her. (Id., ¶¶ 61-62). On July 12, 2010, when Plaintiff indicated that she would not be able to attend a Census meeting because of her other job, Essex indicated that he would consider her insubordinate if she did not attend; when she did attend, she was the only crew member present with Essex. (Id., ¶ 65). Essex asked Plaintiff to teach him interpersonal skills in exchange for him teaching her project management skills; Plaintiff declined. (Id., ¶ 65).
On July 13, 2010, Essex wrote up Plaintiff for three instances of insubordination. (Id., ¶ 66). On July 14, Essex, without explanation, demanded that Plaintiff turn over her badge and bag, meaning Plaintiff could no longer do work for the Census Bureau. (Id., ¶ 67). Later that day, Plaintiff reported the alleged sexual harassment of Essex to his supervisor, Kevin Mora.(Id., ¶¶ 68, 105-06). Plaintiff was ultimately terminated as a Census employee on July 18, 2010. (Id., ¶¶ 70, 107). Plaintiff alleges that she was replaced as Crew Leader Assistant by Mark Boyd, a male employee, and furthermore that no male employees who complained about the hostile work environment created by Essex were terminated. (Id., ¶¶ 75-77). Plaintiff also asserts that Defendants refused to investigate Plaintiff's allegations against Essex. (Id., ¶ 108).
Plaintiff further alleges that, in addition to be terminated "in retaliation for opposing the sexual harassment of Defendant Essex" (id., ¶ 71) she "was terminated . . . for reporting fraud and waste to local management" (id., ¶ 76). Her Second Amended Complaint offers scant details: Plaintiff notes that her administrative complaint asserted that her termination "was motivated by illegal discrimination against her based on sexual harassment, sex discrimination and retaliation for opposing unlawful actions." (Id., ¶ 10). She does not explain further.
Plaintiff submitted her administrative claim pursuant to the Federal Tort Claims Act with the Department of Commerce on July 10, 2012. (Id., ¶ 11; Doc. 50-2). Her complaint contains greater detail regarding the falsifying of documents and data that Plaintiff alleges took place during her time working for the Census Bureau. (See Doc. 50-2 at 17). Plaintiff claims in the complaint that she was retaliated against for reporting this fraud, that the Census Bureau failed to investigate her claims of sexual harassment, and that the Census Bureau negligently trained and retained Defendant Essex. (Id. at 17-19). Plaintiff alleges that the Department of Commerce never responded to her FTCA claims. (Aff. of Debra Heimberger, Doc. 50-3, ¶ 3; Decl. of Megan Rose, Doc. 46-2, ¶¶ 2-3). Plaintiff commenced this lawsuit on November 19, 2012. (Doc. 2). Plaintiff seeks $300,000 in compensatory damages under Title VII and $725,000 under the FTCA, as well as the maximum amount of punitive damages allowable, back pay, and theremoval of "any and all derogatory information" from her personnel file indicating that she was disciplined or terminated for insubordination. (Doc. 42 at 11).
The Court must first decide whether it has subject matter jurisdiction. City of Heath, Ohio v. Ashland Oil, Inc., 834 F. Supp. 971, 975 (S.D. Ohio 1993) (citing Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)); Fed. R. Civ. P. 12(b)(1). Plaintiff bears the burden of proving jurisdiction when subject matter jurisdiction is challenged under 12(b)(1). Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986).
In reviewing a factual attack on subject matter jurisdiction, no "presumptive truthfulness attaches to plaintiff's allegations, and the...
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