Ogbogu v. Navin

• Decision Date: 16 August 2019
• Docket Number: Civil Action No. 3:18-CV-1912-K-BH
• Parties: KINGSLEY OGBOGU, Plaintiffs, v. JONI NAVIN, DEPARTMENT OF LABOR, Defendants.
• Court: U.S. District Court — Northern District of Texas

KINGSLEY OGBOGU, Plaintiffs, v. JONI NAVIN, DEPARTMENT OF LABOR, Defendants.

Civil Action No. 3:18-CV-1912-K-BH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

August 16, 2019

Referred to U.S. Magistrate Judge¹

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Before the Court for recommendation is Defendants' Motion to Dismiss and Brief in Support, filed December 10, 2018 (doc. 20). Based on the relevant filings and applicable law, the motion should be GRANTED.

I. BACKGROUND

On July 25, 2018, Kingsley Ogbogu (Plaintiff) sued his former employer, the Department of Labor (DOL), and its attorney, Joni Navin² (Attorney) (collectively, Defendants), for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), and for disability discrimination, retaliation, and denial of reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA). (docs. 3 at 1; 11 at 1-2, 5, 7-8, 12.)³ He also asserts a claim against DOL for its alleged breach of a settlement agreement. (docs. 3 at 1; 11 at 12.) He seeks a promotion to a position he was allegedly supposed to have received and "monetary compensation for [his] mental pain [and] anguish. (doc. 11 at 13.)

Plaintiff is an African-American male who suffers from cerebral palsy, which substantially limits his motor skills in all areas. (Id. at 2, 7.) He uses a scooter, wheelchair, and crutches to move around, requires assistance at times to dress and prepare meals, and needs to "hold on to something stationary" when he showers. (Id. at 7.) He worked for DOL as an administrative specialist in the Employee Benefit Security Administration (EBSA) division from June 3, 2012 until September 28, 2012. (Id. at 4, 11.) Plaintiff requested accommodations, including voice dictation software to help with typing, a wider workspace to maneuver his scooter/wheelchair, and a chair with proper lumbar support for his spine, but "management refused to honor [his] request[s]." (Id. at 3-4, 8.) He also alleges that due to the severity of his disability, he was discriminated against by multiple individuals in different departments of DOL, including the deputy director, lead administrator, and human resources (HR) director within his division. (Id. at 3.) Although he reported this discrimination, nothing was done. (Id. at 11.)

Sometime between 2012 and 2013, Plaintiff applied with the DOL for a claims investigator position at the GS-7 level, but was denied this "promotion," and the position was ultimately "given to a white female . . . ." (Id. at 2.) He alleges that he was denied this promotion "solely because of [his] severe disability . . . and [his] race . . . ." (Id. at 3.) Plaintiff subsequently filed two complaints with the Equal Employment Opportunity Commission (EEOC) alleging discrimination. (Id. at 16.)⁴

On August 24, 2015, before the EEOC reached a decision on his complaints, Plaintiff and DOL entered into a settlement agreement (the Agreement). (Id. at 16-17; doc. 21 at 3-8.) It was "a complete and binding settlement of all of [Plaintiff's] claims against the [DOL], . . . and any and all other actual or potential claims that were raised or could have been raised by [him] against the [DOL] through the date" of the Agreement's execution. (doc. 21 at 3.) Under the terms of the Agreement, DOL agreed to grant Plaintiff priority consideration for any DOL job in the Dallas/Fort Worth area "for which he [was] a qualified applicant and for which [he] applie[d]," and for which he fulfilled "all the requirements required by the application process." (docs. 11 at 17; 21 at 5-6.) Additionally, Plaintiff was required to "comply with the terms of and submit the letter attached" to the Agreement along with his application. (Id.) Priority consideration, as defined in the Agreement, meant that Plaintiff's resume and application package would be referred "to the selecting official prior to issuance of the certificate of eligibles." (Id.) As a result of the Agreement, on December 17, 2015, the EEOC dismissed Plaintiff's claims. (doc. 11 at 17.)

Plaintiff alleges that after June 1, 2015, when the Agreement was initially drafted, he applied to at least seven job announcements with DOL but was only interviewed for one position, which he claims was an accident because the position had been filled weeks before his interview. (Id. at 6, 12.) On September 23, 2015, Plaintiff inquired about the status of job postings DE-15-DAL-MSHA-SC-0063 and MS-15-DAL-MSHA-SC-280 (2015 Job Postings), and he was informed that both job announcements were cancelled and would not be posted again. (Id. at 27-28.) On May 18, 2016, Plaintiff inquired about job posting MS-16-DAL-EBSA-132 (2016 Job Posting), and he was notified that the job announcement was cancelled in April because it was filled through an internal reassignment. (Id. at 23-24.) He then received an email on June 7, 2016, which noted that he had been interviewed for the 2016 Job Posting and stated that he would be notified once a final decision was reached. (Id. at 25.) He alleges that he was "given false and misleading information" about these job postings in retaliation for filing his claims with the EEOC. (Id. at 5-6, 9.) He asserts that DOL "refused to comply [with] . . . [and] is in breach" of the Agreement, and that Attorney violated his rights because he "represents the agency and their actions." (Id. at 2, 9, 12.)

On March 10, 2016, Plaintiff appealed the dismissal of his EEOC complaint to the EEOC's Office of Federal Operations (OFO), challenging the validity of the Agreement and alleging that DOL had breached it. (Id.) On April 20, 2018, OFO concluded that it could not determine whether DOL complied with the Agreement based on the record before it, and remanded the matter to DOL "for a supplemental investigation for evidence showing whether it complied with the settlement agreement." (Id. at 18-19, 21.) The OFO's decision informed Plaintiff of his right to file a civil action, and that the filing of a civil action would terminate the administrative processing of his complaint. (Id. at 20-21.) Plaintiff then filed this lawsuit on July 25, 2018. (doc. 3.)

On December 10, 2018, Defendants moved to dismiss Plaintiff's claims for lack of subject-matter jurisdiction and failure to state a claim. (doc. 20.) On December 27, 2018, Plaintiff filed a motion that was construed as his response, and Defendants did not file a reply. (docs. 25; 27.)

II. RULE 12(b)(1)

Defendants first move to dismiss some of Plaintiff's claims under Rule 12(b)(1) for lack of subject-matter jurisdiction. (doc. 20 at 9-11.)

A motion to dismiss under Rule 12(b)(1) challenges a court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

A Rule 12(b)(1) motion "may be raised by a party, or a by a court on its own initiative at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006). A court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(h)(3); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). "When a Rule 12(b)(1) motion is filed 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) (per curiam). A dismissal under Rule 12(b)(1) "is not a determination of the merits," and it "does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Id. Accordingly, considering Rule 12(b)(1) motions first "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Id.

A district court may dismiss for lack of subject matter jurisdiction based on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (en banc). A motion to dismiss based on the complaint alone presents a "facial attack" that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1998). "If sufficient, those allegations alone provide jurisdiction." Id. Facial attacks are usually made early in the proceedings. Id. "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumed to be true. Rodriguez v. Tex. Comm'n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998) (citations omitted).

If the defendant supports the motion with evidence, however, then the attack is "factual" and "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson, 645 F.2d at 413. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of attack, the party asserting federal jurisdiction continually carries the burden of proof to show it exists. Ramming, 281 F.3d at 161.

Here, in support of their motion...