Wilson v. U.S. Dep't of Transp., Civil Action No. 10–490 (RMC).

• Decision Date: 04 January 2011
• Docket Number: Civil Action No. 10–490 (RMC).
• Citation: 759 F.Supp.2d 55
• Parties: Joe WILSON, Jr., Plaintiff,v.U.S. DEPARTMENT OF TRANSPORTATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

759 F.Supp.2d 55

Joe WILSON, Jr., Plaintiff,

v.U.S. DEPARTMENT OF TRANSPORTATION, et al., Defendants.

Civil Action No. 10–490 (RMC).

United States District Court, District of Columbia.

Jan. 4, 2011.

Joe Wilson, Jr., Knoxville, MD, pro se.Rhonda Lisa Campbell, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Joe Wilson, proceeding pro se, brought a fourteen count Complaint against the Department of Transportation and nine individuals. Mr. Wilson has stated claims against the Secretary of Transportation as follows: (1) a claim for race and age discrimination based on a December 2007 denial of promotion and (2) a claim for retaliation based on his manager's decision to charge him with leave without pay from August 31 to September 3, 2009.¹ As explained below, all other defendants and all other claims will be dismissed.

I. FACTS

Mr. Wilson brought suit against the Department of Transportation and the following nine individuals employed at various offices within the Federal Highway Administration (“FHWA”): Morten Sorensen, Director of Financial Services at the Office of the Chief Financial Officer (“OCFO”); Margo Sheridan, Deputy Chief Financial Officer at OCFO; Albert “Tom” Park, former Chief Financial Officer at OCFO; Elissa Konove, current Chief Financial Officer at OCFO; Patricia Toole, FHWA Human Resources Director; Allen Masuda, FHWA Office of Civil Rights Associate Administrator; Jeff Paniati, FHWA Executive Director; Patricia Prosperi, FHWA Administrator of Administration; and Marylou Nicholson, Management Assistant at FHWA.

The Complaint is replete with vague allegations. For example, the Complaint alleges:

48. DEFAMATION. This complaint and all the suffering that lead up to it could have been averted long ago.... As a solution, Plaintiff proposed diversity, tolerance, ethics, and leadership training for Morten Sorensen and an apology for this inexplicable behavior. What Plaintiff received was a written reprimand.

...

50. HOSTILE WORK ENVIRONMENT. A hostile work environment is not a single action. It may begin as a single action and from there is becomes a pattern of events. Here is a brief roll of what makes up this hostile work environment:

The intimidation of the staff.

The extraordinary closeness of management [ ] working on this situation with no positive results, only wasted taxpayer money and more hostility.

The exorbitant number of denied promotions from personal motives and grudges.

The proactive involvement of OCC ² in non-EEO cases that provides heart and confidence to management and intimidation to employees.

The excessive number of near violent eruptions in OCFO.

Lou Nicholson spying and intimidating.

The Competitive Sourcing/BPR ³ initiative that targeted only certain individuals—over 50, handicapped, minorities. Inexplicable Freedom of Information Act (FOIA) activity.

Compl. [Dkt. # 1] ¶ 48 & 50.

Despite such vague allegations, it can be discerned from the Complaint that Mr. Wilson has been employed as an accountant with the FHWA since 2003. He started at the grade level GS–9, was promoted to GS–11 in 2005 and was promoted to GS–12 in 2006. He alleges that he is entitled to promotion on a non-competitive basis and that despite being recommended for, and eligible for, promotion since 2006, Defendants have failed to promote him to grade GS–13. Compl. ¶ 5. He claims that in December of 2007, he was required to take a “last minute test with no notice covering matters that have never been within [his] job responsibilities.” Id. ¶ 53.⁴

On December 18, 2007, Mr. Wilson contacted an EEO counselor and claimed that he was not promoted due to race and age discrimination; Mr. Wilson is a an African–American and he was 52 years old in December of 2007. Defs.' Mot. to Dismiss [Dkt. # 6], Ex. 8 (EEO Counselor's Report); id., Ex. 11 (EEO Investigation Report). On January 22, 2008, FHWA sent Mr. Wilson a notice of his right to file a discrimination complaint. Id., Ex. 9 (Notice). On January 30, 2008, Mr. Wilson filed a formal complaint, and the Department of Transportation's Office of Civil Rights (“DOT OCR”) accepted Mr. Wilson's claim for investigation. Id., Ex. 10 (Letter from DOT OCR).

On August 29, 2009, Mr. Wilson again contacted an EEO counselor to file a complaint. He alleged that the agency charged him with leave without pay from August 31, 2009 to September 3, 2009, and that this was done in retaliation for his prior complaint of discrimination. He also alleged a hostile work environment, as a co-worker (Deera Herron) told Mr. Wilson that she had overheard management make derogatory remarks about him. Id., Ex. 19 (EEO Counselor's Report). On October 2, 2009, Mr. Wilson filed a formal charge with the DOT OCR. Id., Ex. 23 (Complaint). DOT OCR dismissed the charge for failure to state a claim, noting that the allegations did not demonstrate severe or pervasive conduct that actually affected any term or condition of employment. Id.

On March 24, 2010, Mr. Wilson filed this lawsuit. Then, on April 6, 2010, an EEOC Administrative Judge dismissed his 2008 charge of failure to promote due to race and age discrimination for the reason that the 2008 charge was pending in this suit. Id., Ex. 29 (EEOC Dismissal Notice). The instant Complaint alleges fourteen Counts:

Count I—Violation of EEOC Regulations at 29 C.F.R. §§ 1614.103, .106(a), & .107(a)(1);

Count II—Conspiracy to violate civil rights under 42 U.S.C. § 1985;

Count III—Negligent failure to prevent conspiracy to violate civil rights under 42 U.S.C. § 1986;

Count IV—Violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e—2000h–6 based on the pre–2008 failure to promote and hostile environment;

Count V—Violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e—2000h–6 based on retaliation and hostile environment;

Count VI—Violation of Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 1981a;

Count VII—Violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.;

Count VIII—Violation of the Civil Service Reform Act of 1978, 5 U.S.C. § 2302;

Count IX—Breach of duty of good faith and fair dealing;

Count X—Civil Conspiracy;

Count XI—Breach of Contract;

Count XII—Intentional and Negligent Infliction of Emotional Distress;

Count XIII—Defamation; and Count XIV—Violation of the First, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution.

Defendants move to dismiss all Counts other than Counts IV, V, and VII.

II. STANDARD OF REVIEW

Defendants seek partial dismissal of the Complaint based on failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and lack of jurisdiction under Rule 12(b)(1).⁵

A. Failure to State a Claim

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. A complaint must be sufficient “to give a defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Although a complaint 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.” Id. The facts alleged “must be enough to raise a right to relief above the speculative level.” Id. “[A] complaint needs some information about the circumstances giving rise to the claims.” Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n. 4 (D.C.Cir.2008) (emphasis in original). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.Cir.2007). A court must treat the complaint's factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950.

B. Lack of Jurisdiction

When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C.Cir.2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is required by Article III of the U.S. Constitution and by federal statute. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008).

III. ANALYSIS

A. Count I, Violation of EEOC Regulations

Mr. Wilson alleges that Defenda...