Quintana-Dieppa v. Dep't of Army
| Decision Date | 25 March 2020 |
| Docket Number | Civil No. 19-1277 (ADC) |
| Parties | CARMEN QUINTANA-DIEPPA, Plaintiff, v. DEPARTMENT OF THE ARMY, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Defendant Mark T. Esper, Secretary of the Department of the Army ("defendants") filed a motion for partial dismissal of the complaint. ECF Nos. 7, 8. Plaintiff Carmen Quintana-Dieppa ("plaintiff") opposed the motion. ECF No. 14. Defendant replied. ECF No. 20. For the following reasons, the motion for partial dismissal is GRANTED. ECF Nos. 7, 8.
Plaintiff, a 62-year-old female, began working for the United States Department of the Army in 1988. ECF No. 1 at 6. At all relevant times, she was employed as a Child and Youth Services ("CYS") Coordinator (NF-1701-04) by the Directorate of Family and Morale, Welfare and Recreation ("FMWR"), a Non-Appropriated Funds ("NAF") Instrumentality at Fort Buchanan. Id. at 7. Plaintiff reported to agency officials Tod Scalf, Director of FMWR at Fort Buchanan, and Daniel Carter, Acting Program Director, both her immediate supervisors. Id. at 7-8. At some point, plaintiff complained about being subjected to hostile work environment by Scalf and Williams Leyh1, and to workplace discrimination and/or harassment by Carter. Id. On September 14, 2014, plaintiff filed a complaint with the EEOC against defendants, alleging discrimination because of her national origin2. Id. at 13. Plaintiff points to various incidents between 2016 and 2017, including Carter's purported refusal to promote her to a CYS Coordinator NF-05 position, poor performance reviews in 2017, and failure to review her performance during some periods in 2017, 2018, and 2019. Id. at 8.
On November 17, 2017, plaintiff received notice of removal from her position as CYS Coordinator via a letter dated November 16, 2017 and signed by Scalf. ECF No. 1 at 1, 2, 9. That day, she was reassigned to a newly created position as Project Manager (NF-04) - a de facto demotion to a non-supervisory position - and immediately placed on administrative leave. Id. Plaintiff was asked to return her office keys and told to go home. Id. According to the complaint, the reassignment was based on the result of an AR 15-6 investigation conducted from August to October 2016 regarding violations to the Army Regulation 600-20, section 2-1's chain of command policies.3 Id. at 1-4, 7-9, 14. Plaintiff contends that the AR 15-6 investigation was a pretext for discrimination based on her age, race and gender, and an act of retaliation because of her 2014 EEOC complaint. Id. Plaintiff further avers that defendants did not provide the required 14-day notification prior to her reassignment in violation of agency regulations, norallowed plaintiff to file a rebuttal, oppose, or appeal the investigation results or her reassignment, all in violation of her due process rights. Id. at 1, 2, 9, 10. She also alleges that defendants' actions were motivated by a discriminatory animus because of her age and gender, and indeed she was replaced by a non-Hispanic Caucasian individual under 40. Id. at 9, 12, 15.
On or around November 20, 2017, while on approved sick leave, plaintiff received a text message from Scalf inquiring where she was, noting she was supposed to be at work at 8:00am. She was also warned that her sick leave would not be approved, and that she would be charged annual leave. ECF No. 1 at 9. On January 4, 2018, although defendant was on approved annual leave until January 5, 2018, Scalf sent her another text message stating that her leave had ended and requesting that she report for duty. Id.
On January 29, 2018, plaintiff filed another EEOC complaint alleging race, gender, and age discrimination, and retaliation based on her previous protected activity. ECF No. 1 at 4. She argued that the de facto demotion to a non-supervisory position affected her promotions, time and attendance, evaluations, terms and conditions of federal employment. Id. The EEOC issued its decision on January 9, 2019. Id. at 1.
Plaintiff now alleges due process violations under the Fifth Amendment, deprivation of rights pursuant to 42 U.S.C. § 1983, violation of the Equal Pay Act ("EPA"), 29 U.S.C. §206(d), retaliation, and gender and age discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621 et seq., respectively. ECF. No. 1 at 10-15. She further contends that defendants violated the EPA when management officials engaged in sex-based discrimination, refused to promote her, and unlawfully removed her from her supervisory role. Id. at 11.
In its motion for partial dismissal, defendants argue that this Court lacks subject matter jurisdiction as to plaintiff's Fifth Amendment, §1983, and EPA claims. Namely, defendants posit that the Department of the Army has not waived its sovereign immunity, its employees acted under the color of federal law and thus, are not subject to §1983 liability. Moreover, they proffer that her EPA claims exceed the statute's monetary limits depriving this Court of jurisdiction. Even so, they argue that plaintiff fails to show any entitlement to relief under the EPA, which addresses wage disparities. Lastly, defendants contend that plaintiff's constitutional and discrimination claims are preempted by the Civil Service Reform Act ("CSRA"), 5 U.S.C. §101 et seq., Title VII and the ADEA. ECF No. 10 at 5-11.
Plaintiff opposed, arguing that defendants' motion is "premature" and "without merits". ECF No. 14 at 1. According to plaintiff, construing the allegations of the complaint in her favor and accepting all factual allegations as true, she sets forth valid and independent discrimination and due process claims which are not preempted by the CSRA, Title VII and the ADEA. Id. She further argues that the complaint's factual underpinnings support a claim under the EPA. Id.
In their reply, defendants reiterate that plaintiff fails to rebut the fact that, despite the complaint's factual allegations, her Fifth Amendment and §1983 claims are preempted by the CSRA, Title VII and the ADEA. ECF No. 20. They also point to plaintiff's failure to cite any legal support showing that this Court retains jurisdiction over her EPA claims. Id.
"When a court is confronted with motions to dismiss under both Rules 12(b)(1) and 12(b)(6), it ordinarily ought to decide the former before broaching the latter." González v. Otero, 172 F. Supp. 3d 477, 495 (D.P.R. 2016) (citing Deniz v. Municipality of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002)). "After all, if the court lacks subject matter jurisdiction, assessment of the merits becomes a matter of purely academic interest." Id.
Under Rule 12(b)(1), a defendant may move to dismiss a complaint for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When reviewing a complaint under Rule 12(b)(1), courts "construe the Complaint liberally and treat all well-pleaded facts as true, according the plaintiff[s] the benefit of all reasonable inferences." Town of Barnstable v. O'Connor, 786 F.3d 130, 138 (1st Cir. 2015) (alteration in original) (citation and internal quotation marks omitted). A complaint, so construed, must be dismissed under Rule 12(b)(1) if the Court lacks subject-matter jurisdiction to adjudicate its claims.
Courts also favorably construe a complaint when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013). "While detailed factual allegations are not necessary to survive a motion to dismiss for failure to state a claim, a complaint nonetheless must contain more than a rote recital of the elements of a cause of action" and "must contain sufficient factual matter to state a claim to relief that is plausible on its face." Id. () (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). "If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).
It is well settled that under 42 U.S.C. § 1983, a plaintiff can bring a "private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law."4 Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011) (citing Redondo-Borges v. U.S. Dep't of HUD, 421 F.3d 1, 7 (1st Cir. 2005)); see also Natal-Rosario v. Puerto Rico Police Dept., 639 F. Supp. 2d 174, 180 (D.P.R. 2009). However, it cannot form the basis of an action against individuals acting under color of federal law or against a federal agency. Rogers v. Vicuna, 264 F.3d 1, 4 (1st Cir. 2001). There is no dispute that plaintiff's allegations hinge on defendants' actions under color of federal law. ECF No. 1 at 2-3. As such, plaintiff's claims under § 1983 necessarily fail.
Construing the complaint in the light most favorable to plaintiff, the Court may infer that she constructively argues a Bivens claim arising out of defendants' purported violations of her due process rights. ECF No. 1 at 9-10. Specifically, plaintiff alleges that she was not provided with adequate procedural due process as outlined in federal regulations, including advancenotice about her reassignment, as well as the right of rebuttal and to appeal both the results of the AR 15-6 investigation and the reassignment. See ECF No. 1.
The Bivens doctrine allows constitutional claims against federal officials, in their individual capacities, for actions taken under color of federal law. McCloskey v. Mueller, 446 F.3d 262, 271-272 (1st Cir. 2006) (citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388,...
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