Hooper v. Austin

• Decision Date: 28 October 2022
• Docket Number: 4:21-CV-1510 RLW
• Parties: ELTON HOOPER, JR., Plaintiff, v. LLOYD AUSTIN, in his official capacity as Secretary of Defense, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

ELTON HOOPER, JR., Plaintiff, v. LLOYD AUSTIN, in his official capacity as Secretary of Defense, Defendant.

No. 4:21-CV-1510 RLW

United States District Court, E.D. Missouri, Eastern Division

October 28, 2022

MEMORANDUM AND ORDER

RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on its Defendant's Motion to Dismiss (ECF No. 9).^[1] This matter is fully briefed and ready for disposition. As discussed herein, the Court grants Defendant's Motion to Dismiss and dismisses Plaintiff Elton Hooper, Jr.'s (“Hooper”) Complaint with prejudice.

BACKGROUND^[2]

Hooper is an African-American, formerly employed by the Department of Defense. (Complaint (“Compl.”), ECF No. 1 ¶ 4). In August 2010, Hooper worked as an Information Technology Specialist with the U.S. Army Reserves in St Louis, Missouri (“HRC-STL”). (Compl., ¶ 8). In 2009 and 2010, the DoD restructured its operations pursuant to the Base Realignment and Closure (BRAC) process. (Compl., ¶¶ 6, 9, 54). As part of this process duties performed at Alexandria, Virginia, Indianapolis Indiana, and HRC-STL were transferred to Fort Knox, Kentucky. In 2009, Hooper was offered a transfer to Fort Knox, but he declined. (Compl., ¶ 54). DoD offered Voluntary Separation Incentive Pay (VSIP) to some civilian employees. (Compl., ¶ 50). However, DoD did not offer VSIP to Hooper because DoD Instruction 1400.25, “DoD Civilian Personnel Management System: Voluntary Separation Programs,” provides that an employee who would otherwise be eligible for VSIP or other buyout would be ineligible if the employee has “declined to relocate with his or her position or declined a transfer of function.” Harris v. Esper, No. 4:18-CV-00690-JAR, 2019 WL 5213027, at *2, n.2 (E.D. Mo. Oct. 16, 2019); see also Compl., ¶ 49 (“If an employee declines a transfer the employee is barred from accepting a VSIP allocation.”). Hooper claims that DoD employees at the Indianapolis and Alexandria locations were offered “job swapping opportunities,” but the St. Louis office “was not offered job SWAP program as an alternative to moving to Ft. Knox, KY[.]” (Compl., ¶¶ 19-20).

Hooper filed an EEO Complaint alleging “discrimination against MRC employees on the bases of race (black), sex (male), color (black), and reprisal for prior EEO activity[.]” See Elton Hooper, Jr., et al., Class Agent v. Mark Esper, Secretary, Department of the Army, Case No. 4: 19-CV-1853 RLW (“Hooper I”), ECF No. 1-3 at 1. Hooper received his right to sue letter on March 20, 2019. (Id., ECF No. 1-3, at 2-7). Hooper filed his Employment Discrimination Complaint regarding same on June 27, 2019 in this Court. (Id., ECF No. 1). Hooper alleged DoD discriminated against him under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., (“Title VII”) and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. (“ADEA”).

On December 13, 2019, the Court in Hooper I found Hooper's allegations insufficient as a matter of law and gave him thirty days to amend his complaint. See Hooper I, 4:19-cv-1853, ECF No. 4. On January 12, 2020, Hooper filed a letter that did not comply with the Court's December 13, 2019 Order. Finally, on March 26, 2020, the Court dismissed Hooper's claims under Title VII and the ADEA. for failure to comply with this Court's December 13, 2019 Order. Hooper v. Esper, No. 4:19-CV-1853-RLW, 2020 WL 1479675, at *4 (E.D. Mo. Mar. 26, 2020).

On December 29, 2021, Hooper filed this suit (Hooper II), alleging claims for racial discrimination under Title VII (Count 1), age discrimination under ADEA (Count 2), violation of 5 C.F.R. Part 351.702 (Count 3), violation of 5 CFR Part 351.501(a) (Count 4), violation of Title 5 U.S.C. §9902(i) (Count 5), and hostile and abusive work environment (Count 6). (ECF No. 1).

STANDARD OF REVIEW

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp., v. Twombly, 550 U.S. 544, 570 (2007)). A “formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). Several principles guide the Court in determining whether a complaint meets the plausibility standard. The court must take the plaintiff's factual allegations as true. Iqbal, 556 U.S. at 678. “This tenet does not apply, however, to legal conclusions or ‘formulaic recitation of the elements of a cause of action'; such allegations may properly be set aside.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” In re Pre-Filled Propane Tank Antitrust Litig., 893 F.3d 1047, 1056 (8th Cir. 2018) (citing Iqbal, 556 U.S. at 678). Rather, the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

DISCUSSION

A. Service of Process

Federal Rule of Civil Procedure 4(i)(A) provides the method for service on United States officers. To serve the United States and its officers, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought-or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office[.]

Fed. R. Civ. P. 4(i)(A).

Here, Hooper obtained summonses for the Secretary of Defense (ECF No. 5-2, 9-2) and the Attorney General (ECF No. 5-2, 9-3). However, Hooper did not obtain a summons for the proper United States Attorney's office. (ECF No. 5-1, 9-4). Plaintiff obtained a summons for the United States Attorney's Office, 5554^th St. NW, Washington, DC 20530. (Id.) Plaintiff served the U.S. Attorney's office in the Eastern District of Missouri with a summons directed to the U.S. Attorney's office in the District of Columbia. Thus, Plaintiff's service was improper under Fed.R.Civ.P. 4(i)(A). See Ploetz v. United States, Case No. CIV. 10-3017 RHK FLN, 2011 WL 743062, at *1 (D. Minn. Feb. 23, 2011) (“The language of Rule 4(i)(1)(A)(i) clarifies that clause (A) is concerned with ensuring that the local U.S. Attorney's office receives the summons and complaint, and subdivision (ii) merely allows for service by mail to the civil-process clerk at that office rather than requiring hand delivery to the U.S. Attorney.”); Smith v. United States Postal Serv., No. 4:21-CV-00379-KGB, 2022 WL 3970771, at *3 (E.D. Ark. Aug. 31, 2022) (“Here, Ms. Smith did not serve the U.S. Attorney for this district; she served a civil process clerk in Washington, D.C. ... In short, she has not satisfied the requirements of Rule 4(i) for serving the United States.”).

Therefore, the Court could dismiss Plaintiff's Complaint for improper service without prejudice. However, since Plaintiff's Complaint is otherwise defective, the Court will dismiss it on other grounds with prejudice.

B. Complaint Untimely

The Court dismisses Hooper's Complaint as untimely because it was not filed within 90 days after receiving the Final Agency Decision (“FAD”). (ECF No. 16 at 2). The DoD issued its FAD on March 19, 2019. (ECF No. 9-1 at 10-15). Hooper received the FAD on April 10, 2019. (ECF No. 14-1 at 1).

A plaintiff alleging claims under Title VII and ADEA may “file a civil action in an appropriate United States District Court (a) within 90 days of receipt of the agency final action on an individual or class complaint; [or] (c) Within 90 days of receipt of the Commission's final decision on an appeal[.]” 29 C.F.R. §1614.407(c). Thus, Hooper was required to file his federal court Complaint no later than July 9, 2019 or, alternatively, his EEOC appeal by May 11, 2021. Hooper did not file this Complaint until December 29, 2021 (ECF No. 1) and did not file his EEOC appeal until June 26, 2019. (ECF No. 14-1 at 2). Hooper's filing of an untimely appeal to the EEOC did not relieve him of his obligation to file a timely complaint in the district court. See Mathis v. Corp. for Nat. & Cmty. Serv., 327 F.Supp.2d 154, 157 (D. Conn. 2004) (“filing an untimely appeal to the EEOC does not relieve the complainant of the burden to timely file in district court”); Van Uitert v. Henderson, No. CIV.99-1021-AS, 2000 WL 776397, at *4 (D. Or. June 13, 2000), aff'd, 19 Fed.Appx. 604 (9th Cir. 2001) (“The fact that Plaintiff filed an appeal with the OFO did not toll Plaintiff's obligation to file in this court.”); Staropoli v. Donahoe, 786 F.Supp.2d 384, 395, n.9 (D.D.C. 2011) (“To be clear, a plaintiff cannot simply file a late administrative appeal, wait for the EEOC to dismiss the appeal as untimely, and then file a civil action within 90 days of the EEOC's dismissal (or within 90 days of the dismissal of such an untimely appeal on a request for reconsideration).”).

Hooper argues that his Complaint was timely because “[o]n September 30, 2021, the U.S. Equal Employment Opportunity Commission Office of Federal Operations issued him a ‘right to sue' letter allowing him to file his case in a U.S. District Court. (exhibit A).” (ECF No. 14 at 3). Contrary to his position, the EEOC order denying Hooper's request for reconsideration of his untimely appeal did not reset the deadline for him to his complaint in the...