WILLIAMS v. UNITED States Gen. Serv. Admin.
| Decision Date | 08 April 2011 |
| Docket Number | Case No.: 8:09-cv-2508-T-33AEP |
| Parties | JOSEPH ARTHUR WILLIAMS, Plaintiff, v. UNITED STATES GENERAL SERVICES ADMINISTRATION, ET AL., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
OPINION TEXT STARTS HERE
Before the Court is Defendants' Motion to Dismiss (Doc. # 22), which was filed on August 31, 2010. Williams filed a Response in Opposition to the Motion to Dismiss on September 24, 2010. (Doc. # 31). For the reasons that follow, the Motion to Dismiss is granted in part and denied in part in this employment discrimination and veterans rights case.
Williams, a Vietnam-era veteran, worked as a Tax Compliance Officer for the IRS in Tampa, Florida, from June 2006, until August 2006, when he initially resigned from his position. (Doc. # 21 at ¶ 11). Thereafter, he resumed working for the IRS, but again resigned in January 2007. Id. at 1 31. From January 2007, through March 2010, Williams applied for "hundreds if not thousands, of federal sector jobs via the USAJOBS website." Id. Despite his efforts, Williams was not offered employment. Id. at ¶ 12. As alleged in the complaint, Williams applied for various vacancy announcements; however, all but one vacancy announcement was cancelled. With respect to the one vacancy announcement that was not cancelled, (Vacancy Announcement 09-011 32 TC 02-Regulatory Program Specialist) Williams was interviewed for the position, but was not hired.1 Williams was notified that he did not get the position on March 19, 2009. Williams alleges that he "was non-selected for a younger, allegedly less qualified, female applicant." (Doc. # 21 at ¶ 12).
"In 2009, [Williams] filed Veterans' Preference and EEO complaints against GSA" and "filed VEOA, USERRA, and EEO complaints against the IRS and GSA with the Department of Labor, Veterans' Employment and Training Services ('DOL- VETS'), and with the IRS and GSA EEO offices for employment related Veterans' Preference violations, prohibited discrimination charges, disparate treatment charges, and retaliation charges." (Doc. # 21 at ¶ 13).
On December 14, 2009, Williams filed a 49-page complaint (not including exhibits) against the United States General Services Administration as well as numerous other governmental entities and officials. (Doc. # 1).
Finding that the complaint failed to comply with the pleading requirements of the Rule 8(a) of the Federal Rules of Civil Procedure, the Court required Williams to file an amended complaint. (Doc. # 9). Williams filed his amended complaint (Doc. # 21) on August 18, 2010. The amended complaint contains seven counts and is asserted against the General Services Administration, the Office of Personnel Management, the Merit Systems Protection Board, the Department of Labor, the Department of the Treasury, and 17 individual government employees, including department heads, in their official capacities.
Count one, asserted against "the Defendants," alleges violation of the Veterans Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3330a. In count two, Williams asserts that GSA and the IRS violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301. Williams contends in count three that GSA, the IRS, and OPM violated his employment and reemployment rights pursuant to 5 C.F.R. §§ 300.103, 300.104, when such Defendants failed to hire Williams and failed "to implement the applicant hiring notification process and the Structured Interview process effectively and consistently among all applicants." (Doc. # 21 at ¶ 24).
Counts four and five of the complaint allege that GSA and the IRS violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Specifically, in count four, Williams claims that GSA and the IRS retaliated against him due to his "prior participation in EEO activity against the GSA and the IRS." (Doc. # 21 at ¶ 25). In count five, Williams contends that GSA and the IRS discriminated against him on the basis of his gender, alleging that: "supermajorities of women controlled the federal sector hiring and employment process at the GSA and the IRS, and that white Anglo-Saxon males, including the Plaintiff, are subjected to illegal job discrimination in federal sector hiring and employment by these supermajorities of women." (Doc. # 21 at ¶ 28).
Williams, in count six, alleges that the federal agency Defendants violated the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, by "failure and refusal to employ or reemploy [Williams] due to [his] age -59 and 60 years." (Doc. # 21 at ¶ 29).
Finally, in count seven, Williams asserts a constructive discharge count against the IRS: "[Williams's] successive resignations from the IRS in August 2006 and January 2007, respectively, were involuntary resignations due to the IRS Agency's misinformation, illegal personnel acts, and fraudulent misrepresentations." (Doc. # 21 at ¶ 31). Williams further explains that he "would not have resigned from the TCO [Tax Compliance Officer] position . . . if [he] had been fully informed by the IRS that the IRS planned to permanently bypass [him] from all subsequent TCO positions nationwide . . . ." Id.
Asserting arguments pursuant to Rule 12(b)(1) and 12(b)(6), Fed. R. Civ. P., Defendants collectively move for dismissal of the amended complaint with prejudice. The motion to dismiss is ripe for the Court's review.
Motions to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack jurisdiction facially or factually. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). When the jurisdictional attack is factual, as in the present case, the Court may look outside the four corners of the complaint to determine if jurisdiction exists. Eaton v. Dorchester Dev., Inc. , 692 F.2d 727, 732 (11th Cir. 1982). In a factual attack, the presumption of truthfulness afforded to a plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)(citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Because the very power of the Court to hear the case is at issue in a Rule 12(b)(1) motion, the Court is free to consider evidence outside the complaint. Eaton, 692 F.2d at 732.
On a Rule 12(b)(6) motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990) (). However, the Supreme Court explains that: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations omitted). Further, courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
As a threshold matter, the Court notes that it has granted Williams considerable leniency due to his status as a pro se litigant and has not held his pleadings to the same standard as an attorney. Nevertheless, several of Williams's claims are due to be dismissed.
Defendants launch a factual attack on Williams's Title VII gender discrimination and retaliation claims under Rule 12(b)(1), Fed. R. Civ. P., arguing that Williams failed to exhaust administrative remedies with respect to these claims. "Before a plaintiff may file a charge of discrimination under Title VII, he must timely pursue and exhaust his administrative remedies." Botelho v. Johanns, 353 F. App'x 295, at *5 (11th Cir. 2009).
The Federal Regulations require that an "aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory, or in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). "Under Tile VII . . . federal employees are required to initiate administrative review of any alleged discriminatory or retaliatory conduct with the appropriate agency within 45 days of the alleged discriminatory act." Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008). "Generally, when the claimant does not initiate contact within the 45-day charging period, the claim is barred for failure to exhaust administrative remedies." Id. (citing Brown v. Snow, 440 F.3d 1259, 1264-65 (11th Cir. 2006)).
There is a logical distinction between Williams's Title VII discrimination claims relating to the position for which he was interviewed and was not hired and the positions that were withdrawn. The Court will therefore address these divergent claims separately, although they are lumped together in counts four and five of Williams's complaint.
Concerning Title VII gender discrimination and retaliation, Williams admits that he did not exhaust his administrative remedies with respect to the position for which he was interviewed (the Regulatory Program Specialist position: vacancy announcement 09-011 32 TC 02). Specifically, Williams indicates in the complaint that he "timely filed EEO complaints against the IRS and the GSA for the positions identified in the Complaint, except for...
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