Kurth v. Gonzales
| Decision Date | 29 December 2006 |
| Docket Number | No. 1:05-CV-472.,1:05-CV-472. |
| Citation | 469 F.Supp.2d 415 |
| Parties | Michael D. KURTH v. Alberto GONZALES, in his official capacity as Attorney General of the United States, United States Department of Justice. |
| Court | U.S. District Court — Eastern District of Texas |
Russell Ray Smith, Fairchild Price Thomas & Haley, Nacogdoches, TX, for Michael D. Kurth.
Andrea Hedrick Parker, Beaumont, TX, for Alberto Gonzales in his official capacity as Attorney General of the United States, United States Department of Justice.
Plaintiff, Michael D. Kurth (Kurth) asserts multiple causes of action under three federal worker-protection statutes. The defendant, the Attorney General of the United States, moves to dismiss all claims, but without articulating procedural bases for the proposed dismissals. The defendant's substantive arguments, however, reveal that he seeks dismissal of two claims for lack of subject-matter jurisdiction, a defense which may be asserted by motion under Federal Rule of Civil Procedure 12(b)(1). He argues for dismissal of other claims, asserting that plaintiff fails to allege facts warranting relief, another defense which may be asserted by motion under Rule 12(b)(6). Finally, he seeks dismissal of all remaining claims on grounds that plaintiff's evidence, accepted as true, fails to raise a genuine issue of material fact supporting all essential elements of plaintiff's causes of action. This defense also may be asserted by pretrial motion for summary judgment under Rule 56.
This opinion addresses the motion only as it pertains to causes of action that defendant contends should be dismissed on Rule 12 grounds. A separate opinion to be issued later will address causes of action for which defendant contends he is entitled to summary judgment, on grounds articulated in Rule 56. Once both opinions are issued, the court will issue an implementing order.
When considering motions to dismiss and motions for summary judgment, courts accept the version of the facts advocated by the non-movant, or as asserted by the movant without contradiction. Thus, the factual background stated here is essentially facts averred by Kurth.
Kurth is a 41 year-old male who successfully operated a roofing company in. Florida. He then enlisted in the United States Army where he enjoyed a decorated and successful career, serving a tour of duty in Somalia and an assignment at Fort Leavenworth, Kansas.
Kurth began working for the Federal Bureau of Prisons (BOP) when he was recruited to be part of the staff for the Federal Correctional Complex being built in Beaumont, Texas. He was hired in October of 1996 as a Maintenance Worker Supervisor, a position that involved supervising inmates and managing various building projects. During this employment, Kurth received multiple service awards, and several highly favorable employment evaluations.
Problems arose, however, between Kurth and his supervisor, Walt Prichard (Prichard). Kurth alleges that Prichard did not hold himself to the high moral standards that Kurth thought appropriate for the position. For example, Kurth alleges that Prichard ordered him to complete a concrete pour, even though the area had experienced severe rain for the proceedings two weeks, and more rain was forecast. Kurth resisted, as water saturation would ruin the work. Re-doing the pour would require unnecessary time and waste taxpayer money. Kurth protested and obtained permission from the warden to delay the pour. Prichard responded by screaming and yelling at Kurth, insisting that the pour happen that day only because he (Prichard) had a side bet over a plate of ribs on when the pour would be complete.
Kurth further alleges that Prichard favored certain employees simply because they were part of a "good ole boys" network. Under a union contract, overtime was to be distributed evenly. But Prichard favored "cronies," and thereby denied other employees a fair chance at overtime hours. Kurth himself received adequate overtime hours, but when other workers got upset, he agreed to help his coworkers file a union grievance.
Prichard learned that the grievance was filed, and who filed it. He called the employees into a meeting, where he proceeded to yell profanities at them, and threaten their jobs and careers with the BOP. After the group meeting, Prichard singled Kurth out for individual threats and intimidation.
Kurth began to suffer emotionally. He had difficulty sleeping and eating, and lost weight rapidly. His relationship with his wife suffered, and on at least one occasion; he tried to commit suicide. On advice of doctors, who diagnosed Kurth with severe depression, Kurth began taking sick' leave. When all of his leave time was exhausted, Kurth requested and was allowed to go on leave without, pay status. Kurth's doctors advised him that he should not return to a work environment where Prichard would be present.
Kurth filed for worker's compensation benefits. He also filed a complaint with the Office of the Special Counsel (OSC), complaining of Prichard's actions.1 He ultimately received favorable rulings on both initiatives. He received worker's compensation benefits based on a finding of job-related injury, and OSC's investigation resulted in a determination that' Prichard violated several agency rules and policies. OSC declined to act further, however, as it understood incorrectly that Prichard had retired. Prichard in fact continued to work for the BOP for several years thereafter.
After several months absence from work, Kurth received a termination proposal letter, from the BOP. Kurth and his counsel then began efforts to avert the termination, suggesting that Kurth was willing and able to return to work provided that Prichard was not his supervisor. The BOP offered Kurth reassignment to different areas and to different positions at the complex, but because Prichard was either currently in the chain of command for those positions, or might someday be placed in a supervisory role over those positions, Kurth declined all offers. Kurth suggested that he be returned to his same Maintenance Supervisor Worker position, but simply report to a warden, rather than Prichard.
BOP refused to accept Kurth's proposal, and almost seven months after the initial notice of proposed termination, BOP sent Kurth a final termination notice. This notice was rescinded a few days later, and a revised termination notice was issued.2 The revised termination notice officially discharged Kurth, effective March 24, 2001.
After his termination, Kurth opened his own contracting and remodeling business. He continues to run the business as a sole proprietorship, and employs between four and eight employees depending on the time of year. He also serves as a volunteer in the Southeast Texas Veterans Service Group. As such, he assists with many military funerals in the area. He also works with a volunteer fire department as a fire and rescue specialist.
After filing a discrimination complaint with the Department of Justice's Equal Opportunity Complaint Adjudication Office and receiving notice of, his right to file a discrimination complaint with the district court, Kurth filed this suit. He asserts causes of action under the Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b); Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.; and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.
The defendant (Attorney General Gonzales) moves for dismissal, or alternatively, for summary judgment on all of. Kurth's claims. As mentioned earlier, Attorney General Gonzales does not specify procedural grounds on which he seeks dismissal. From his arguments, however, it appears that he seeks dismissal of Kurth's WPA and Rehabilitation Act retaliation claims on jurisdictional grounds, while seeking dismissal of Kurth's Title VII discrimination and Rehabilitation Act constructive discharge claims because Kurth has failed to allege facts upon which relief can be granted.
As for the discrete claims mentioned in the preceding paragraph, the court now addresses defendant's motion under standards set by Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) provides a mechanism for dismissal based on "lack of jurisdiction over the subject matter." Rule 12(b)(6) provides a similar mechanism for dismissal based on "failure to state a claim upon which relief can be granted."
Dismissals under Rule 12(b)(1) are predicated on the fact that federal courts are courts of limited jurisdiction. Federal courts must have both personal jurisdiction over the parties and subject-matter jurisdiction over the cause of action. Federal courts may entertain only cases and controversies specified in Article III, Section 2 of the Constitution. There must be both constitutional and statutory authority before federal jurisdiction attaches. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). It is presumed that a case lies outside the court's limited jurisdiction, and the burden of establishing jurisdiction is with the party asserting jurisdiction. Id.
In some instances, carrying that burden requires a showing of prior exhaustion of available administrative remedies. This requirement stems from the fact that Congress may elect to grant jurisdiction over particular causes of action to administrative agencies. See Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Under the doctrine of administrative exhaustion, claimants who do not first exhaust prescribed administrative remedies are not entitled to seek judicial relief. See Woodford v. Ngo, ___ U.S. ___, ___, 126 S.Ct. 2378, 2385, 165 L.Ed.2d 368 (2006). The...
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