Watson v. Tenn. Valley Auth., Case No. 5:11–cv–02560–SLB.

Citation867 F.Supp.2d 1215
Decision Date30 March 2012
Docket NumberCase No. 5:11–cv–02560–SLB.
PartiesJack WATSON, Plaintiff, v. TENNESSEE VALLEY AUTHORITY; Dennis Bottorff, in his official capacity as Chairman of the TVA Board of Directors; Marilyn A. Brown, Mike Duncan, Tom Gilliland, William Graves, Barbara S. Haskew, Richard Howorth, Neil McBride, and William B. Sansom in their official capacities as members of the TVA Board of Directors; and Day & Zimmermann NPS, Inc., Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama

OPINION TEXT STARTS HERE

Andrew C. Allen, White Arnold & Dowd PC, Birmingham, AL, for Plaintiff.

Carolyn Ngoc Lam, Terry Price, Ford & Harrison LLP, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Chief Judge.

This case is currently before the court on defendant Tennessee Valley Authority's (TVA) Motion to Dismiss, (doc. 13).1 On July 13, 2011, plaintiff filed a one-count complaint, (doc. 1), against TVA and Day and Zimmermann NPS, Inc., (DZNPS) requesting relief pursuant to the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended,29 U.S.C. § 621, et seq. (ADEA). TVA argues that dismissal is appropriate because TVA is an improper defendant to this action, and plaintiff has not exhausted his federal-sector administrative remedies. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that the TVA's Motion to Dismiss, (doc. 13), is due to be granted.

I. STANDARD OF REVIEW

First, under Fed.R.Civ.P. 12(b)(6), a party may move the court to dismiss a case based on a failure to state a claim upon which relief can be granted. When deciding a motion to dismiss under Rule 12(b)(6), the court “must accept the allegations set forth in the complaint as true.” Gonzalez v. McNary, 980 F.2d 1418, 1419 (11th Cir.1993); see also Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir.2008).

The allegations in the complaint are taken as true and construed in the light most favorable to the plaintiffs. [Hoffman–Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir.2002).] However, the complaint's [f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); see also Watts v. Florida Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.2007). “The Supreme Court's most recent formulation of the pleading specificity standard is that ‘stating such a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required element.” Watts, 495 F.3d at 1295 (quoting Twombly, 127 S.Ct. at 1965). This rule does not “impose a probability requirement at the pleading stage.” Twombly, 127 S.Ct. at 1965. Instead, the standard “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of the required element. Id. “It is sufficient if the complaint succeeds in ‘identifying facts that are suggestive enough to render [the element] plausible.’ Watts, 495 F.3d at 1296 (quoting Twombly, 127 S.Ct. at 1965).

Rivell, 520 F.3d at 1309–10.

[T]he threshold that a complaint must meet to survive a motion to dismiss is ‘exceedingly low.’ Holley v. City of Roanoke, 162 F.Supp.2d 1335, 1338 (M.D.Ala.2001) (quoting Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985)). However, taking the facts as true, a court may grant a motion to dismiss when, “on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993) (citations omitted). A court need not accept legal conclusions as true, but only well-pleaded factual allegations are entitled to an assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009) (citation omitted). Accordingly, for the purposes of TVA's Motion to Dismiss pursuant to Rule 12(b)(6) ( i.e. TVA is an improper party defendant), the court accepts the allegations set forth in the complaint as true.

Second, under Fed.R.Civ.P. 12(b)(1), a party may move the court to dismiss a case if the court lacks jurisdiction over its subject matter. TVA construes its contention that plaintiff failed to exhaust his federal-sector administrative remedies as an attack on the court's subject matter jurisdiction. (Doc. 13 at 1.) However, “th[e] failure to exhaust administrative remedies by federal employees does not require dismissal for lack of subject matter jurisdiction but is, instead, grounds for dismissal based on failure to state a claim.” Jackson v. Barnhart, No. 1:05–CV–2979–WSD, 2006 WL 2466810, at *4 (N.D.Ga. Aug. 24, 2006) (citing Bryant v. U.S. Dep't of Agric., 967 F.2d 501, 504 (11th Cir.1992)). It is “a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Moreover, and explained infra, federal-sector ADEA claimants are not required to exhaust their administrative remedies before instituting a civil action, provided that they give the Equal Employment Opportunity Commission (“EEOC”) a “notice of an intent to file such action” within 180 days of the alleged discriminatory act and wait 30 days before filing suit. See29 U.S.C. § 633a(d). “It is [also] well established ... that the notice of intent to sue requirement is not an absolute jurisdictional requirement, but is subject to modification or excuse for equitable reasons.” Ray v. Nimmo, 704 F.2d 1480, 1483 (11th Cir.1983) (citations omitted). Therefore, the court considers the Motion to Dismiss, (doc. 13), and applies a Rule 12(b)(6) standard of review in deciding whether plaintiff complied with the applicable statutory prerequisites to suit.

II. STATEMENT OF FACTS2

Plaintiff Jack Watson (plaintiff), a 66–year–old male, first began employment with TVA in 1971 as a pipefitter at the Browns Ferry Nuclear Plant (“Browns Ferry” or “the plant”). (Doc. 23 ¶ 10.) Plaintiff retired in December 2000 but continued to work at the plant under various TVA subcontractors. ( Id. ¶ 11.) On December 22, 2009, plaintiff accepted employment with DZNPS, a TVA subcontractor at Browns Ferry. ( Id.) Plaintiff alleges that because “TVA controlled the personnel decisions of [DZNPS] from what was an essentially centralized personnel function,” TVA and DZNPS “constitute joint employers for [the] purposes of this action.” 3 ( Id. ¶ 12).

During his employment, plaintiff helped supervise the plant's 95–02 Fire Protection Project. ( Id. ¶ 14.) Around May 2010, plaintiff had a conversation with DZNPS Site Manager John Melvin (Melvin), wherein Melvin stated that he “had found that old station hands did not conform to the company's expectations.” ( Id. ¶ 15.) Around July 2010, Melvin asked plaintiff whether he “had a problem working with [him] because [he] was only 38 years old.” ( Id.) Plaintiff told Melvin that he did not have a problem and asked Melvin whether he had a problem working with him. ( Id.) Melvin did not respond and walked away. ( Id.)

On or about September 24, 2010, Melvin terminated plaintiff and “replaced him with a substantially younger, less qualified employee, Ryan Collins, who, upon information and belief, was only in his 30s.” ( Id. ¶ 18.) Plaintiff filed a Charge of Discrimination with the EEOC on or about February 18, 2011, charging TVA and DZNPS with age discrimination. ( Id. ¶ 9(a); see doc. 23–1.) On June 8, 2011, the EEOC issued a Dismissal and Notice of Rights letter, apprising plaintiff of his right to pursue his claim in district court. (Doc. 23 ¶ 9(b); see doc. 23–2.) On July 13, 2011, plaintiff filed a one-count complaint against TVA and DZNPS requesting relief for age discrimination in violation of the ADEA. ( See doc. 1.) This motion to dismiss followed. (Doc. 13.)

III. DISCUSSION

TVA moves for dismissal of this action on the grounds that: (1) “the nine-member Board of Directors of TVA, in their official capacity as the head of the agency, are the only proper defendants to this action ...,” and (2) plaintiff failed to exhaust his federal-sector administrative remedies. (Doc. 13 at 1.)

Plaintiff filed an opposed motion for leave to amend his original complaint, (doc. 18), following TVA's Motion to Dismiss, (doc. 13), in order to add TVA's nine-member Board of Directors (Board of Directors) as defendants. The proposed amended complaint also sought to add a more detailed narrative of facts. ( See doc. 18–1.) TVA opposed the motion on the ground that the addition of the Board of Directors as defendants was futile because the proposed amended complaint could not overcome the obstacle that plaintiff failed to exhaust his federal-sector administrative remedies. ( See doc. 20.) The court nonetheless granted plaintiff's motion for leave without considering TVA's opposition due to the proposed amended complaint's additional factual allegations and plaintiff's impending deadline for serving the Board of Directors. ( See doc. 22.) Thus, even assuming that TVA is an improper party, plaintiff may still maintain suit against the Board of Directors in their official capacities assuming they are the proper defendants to this action.

However, assuming that the Board of Directors are proper defendants to this action, TVA's contention that plaintiff failed to comply with the applicable statutory prerequisites to suit serves as a viable ground for dismissing both TVA and its Board of Directors from this action.

1. Proper Defendants

Section 717 of Title VII of the Civil Rights Act of 1964, as amended,42 U.S.C. § 2000e–16, is “the exclusive judicial remedy for claims of discrimination in federal employment.” Brown v. GSA, 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Title VII provides that in an action against a federal...

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