ROSEMARY M. COLLYER, District Judge.
Angela McAlister alleges that she was fired from her job at the U.S. Postal Service, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, and the United States Constitution, after she yelled at her supervisor and shoved him backwards during an altercation over a leave slip. Because Ms. McAlister's claims under Title VII were not timely filed, they will be dismissed. Further, Ms. McAlister fails to state a claim for any Constitutional violation. As the
Angela McAlister began employment at the Postal Service in 1980. In 2005, she was a mail processing clerk at the Curseen-Morris facility on Brentwood Road in Washington, D.C. On September 1, 2005, Ms. McAlister was working a shift that ran from 5:00 am to 1:30 pm. Compl. ¶ 5
Compl. ¶ 5. The defendants' version of the events includes a few additional details:
Defs.' Mem. in Support of Mot. to Dismiss, or in the Alternative, for Summ. J. [Dkt. #24] ("Defs.' Mem."), Ex. A (9/14/2005 Investigative Memorandum) at 1. A witness concurred with this description of events. Id. at 1-2. Mr. McAlister "admitted he saw his wife put her hand on Mr. Fauntleroy's back." Id. at 3. Ms. McAlister does not dispute the defendants' version of events, but she blames Mr. Fauntleroy for starting the ruckus, because he allegedly snatched the leave slip from her hands.
Ms. McAlister was placed on emergency off-duty status without pay on September 1, 2005.
Ms. McAlister further alleges that "[a]s [a] result of Ms. McAlister's prior [Equal Employment Opportunity ("EEO")] complaints against the USPS, Defendants Potter and Fauntleroy pursued criminal charges against Ms. McAlister." Compl. ¶ 7.
Ms. McAlister timely filed a formal complaint of discrimination based on sex, age, disability and retaliation with the EEO office at the Postal Service.
On January 4, 2007, Ms. McAlister filed a complaint with the United States District Court for the District of Columbia similar to the instant Complaint. Ms. McAlister's initial case was dismissed without prejudice on August 7, 2008, for failure to exhaust administrative remedies because she filed it before the expiration of 180 days after her October 23, 2006 appeal of the
In the instant matter, Ms. McAlister claims violations of Title VII and her constitutional rights. Count I of the Complaint alleges that the Postal Service discriminated against Ms. McAlister based on her gender and retaliated against her because of her prior protected activity. Compl. ¶ 13. Ms. McAlister claims she was discriminated against on the basis of her sex when she was issued a notice of removal on October 17, 2005, and subsequently terminated because, in a prior incident where a male supervisor allegedly struck a male letter carrier in the chest, both were only sent home for one day with pay. Id. ¶ 8. She also points to the fact that no action was taken against Mr. Fauntleroy for snatching the leave slip from her, whereas she was terminated for her behavior. Id. ¶ 5. Count II alleges that the defendants violated her Fourth Amendment rights to be free from unreasonable searches and seizures when the Postal Inspectors visited her home, yelled at her through the door, broke her storm door, left threatening messages on her answering service, and then later arrested her and dropped her on the sidewalk. Id. ¶ 16.
Count III alleges a violation of the due process clause of the Fifth Amendment because Ms. McAlister was removed from her job in a summary fashion "without procedural and substantive process due her." Id. ¶ 20. The conduct of the Postal Inspectors is also alleged under Count III to violate Ms. McAlister's due process rights. Count IV alleges that Messrs. Potter and Fauntleroy "deprived McAlister of due process and a name-clearing hearing to which she was entitled under the Due Process Clause" when her pre-disciplinary hearing was scheduled for midnight and she was terminated without a hearing. Id. ¶ 23. Count V advances a claim under 42 U.S.C. § 1983 against Messrs. Potter and Fauntleroy for alleged violations of Ms. McAlister's constitutional rights, "including her Fourth Amendment right to be free from unreasonable searches and seizures, Fifth Amendment right to due process, and Eighth Amendment right to be free from cruel and unusual punishment."
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
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). 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. When a plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
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. Iqbal, 129 S.Ct. at 1949. "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.
Count I of the Complaint alleges discrimination based on sex and retaliation based upon prior protected activity. Counts II through V allege a deprivation of various constitutional rights. They will be addressed in turn.
Title VII prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin in hiring decisions, in compensation, terms, and conditions of employment, and in classifying employees in a way that would adversely affect their status as employees. See generally 42 U.S.C. § 2000e. Section 717 of the Civil Rights Act extended Title VII protections to federal employees and mandated that federal agencies enact an administrative process for the investigation and processing of discrimination claims by federal employees. See 42 U.S.C. § 2000e-16. A federal employee must first proceed before the agency accused of discrimination before the employee may institute a civil action in federal court. 42 U.S.C. § 2000e-16(c); see also Bayer v. U.S. Dep't of Treasury, 956 F.2d 330,
Following the exhaustion of administrative remedies, a federal employee may bring a timely civil action by filing suit with a federal district court within 90 days of final administrative action. See Price v. Greenspan, 374 F.Supp.2d 177, 184 (D.D.C.2005), aff'd, Price v. Bernanke, 470 F.3d 384 (D.C.Cir.2006); accord 42 U.S.C. § 2000e-16(c) (federal employees must file a civil action within ninety days after "receipt of notice of final action"). Courts apply the ninety-day time limit strictly and will dismiss a suit for missing the deadline by even one day. See, e.g., Woodruff v. Peters, 375 U.S.App.D.C. 429, 433, 482 F.3d 521 (D.C.Cir.2007) (citing Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C. 2006)); Harris v. U.S. Dep't of Veterans Affairs, 126 F.3d 339 (D.C.Cir.1997) (giving effect to a complaint filed one day late only because the defendant failed to raise timeliness as an affirmative defense); Smith v. Dalton, 971 F.Supp. 1, 2-3 (D.D.C.1997) (suit filed ninety-one days after final agency action is barred).
However, the ninety-day time period is non-jurisdictional—it functions as a statute of limitations and is subject to waiver, estoppel, and equitable tolling. Mondy v. Sec. of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988).
Id. (quoting Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)). Courts are not forgiving where late filings are simply due to a plaintiff's failure to exercise due diligence. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). In other words, to warrant equitable tolling, a plaintiff must have exercised due diligence and her excuse for the delayed filing must be "more than a garden variety claim of excusable neglect." Battle v. Rubin, 121 F.Supp.2d 4, 8 (D.D.C.2000). The burden of pleading and proving any excuse for failure to meet the ninety-day filing limit falls wholly upon the plaintiff. Saltz v. Lehman, 672 F.2d 207, 209 (D.C.Cir.1982).
The fatal flaw in Ms. McAlister's Title VII claims of sex discrimination and retaliation are that they are untimely brought to court.
Ms. McAlister was advised by the EEOC that she had 90 days from the date she received its August 28, 2008 decision to file suit. Even presuming a generous five days for mail delivery and receipt, Ms. McAlister did not file this lawsuit until the ninety-second day. Ms. McAlister argues that the defendants have not presented "any evidence on when and if Plaintiff received the OFO decision." Pl.'s Opp'n to Defs.' Mot. to Dismiss, or in the Alternative, for Summ. J. [Dkt. # 26] ("Opp'n") at 6. She adds that "[i]t is far from clear that Defendants will be able to establish that the Title VII claim is untimely."
Instead, Ms. McAlister argues that the dismissal without prejudice of her initial complaint when the administrative process was incomplete "permitted the plaintiff to file a new complaint after the duration of 180 days." Opp'n at 6 (citing Martini v. Fed. Nat'l Mortg. Ass'n, 178 F.3d 1336 (D.C.Cir.1999)). The argument confuses two different aspects of the EEO charge process. Exhaustion of administrative remedies is necessary before an EEO complainant can bring her case to federal court. Price, 374 F.Supp.2d at 184. The administrative remedy in question in Martini is the rule giving the EEOC a minimum of 180 days to consider, investigate, and decide the merits of an EEO charge. As it often takes longer than 180 days to make a determination on an appeal, at the end of 180 days, an employee can terminate the EEOC appeals process and immediately file a claim with the federal court. Wilson v. Pena, 79 F.3d 154, 166 (D.C.Cir.1996); see also 29 CFR § 1614.407(d) (noting that a complainant can file suit in federal court after 180 days from the date of filing an appeal with the EEOC if there has been no final decision by the EEOC); 42 U.S.C.S. § 2000e-16(c). However, a lawsuit filed within that 180 days will be dismissed as premature, which is what happened in Martini; Mr. Martini was required to wait for the expiration of the full 180 days (or the issuance of an EEOC decision) before refiling his suit. Martini, 178 F.3d at 1348. Here, however, Ms. McAlister followed the entirety of the administrative process, including an appeal of an adverse final agency action to the EEOC. Unlike Martini, where the complainant brought suit before the EEOC had rendered a final decision, the EEOC issued a final determination in Ms. McAlister's case. Following this final determination by the EEOC dismissing her charge, Ms. McAlister had ninety days to file suit with the district court, and the EEOC explicitly advised her of this deadline.
The EEOC decision issued on August 28, 2008. This lawsuit was filed 97 days later on December 1, 2008. Ms. McAlister offers nothing to rebut the presumption that the EEOC decision was received in a timely manner or that equitable considerations would toll the ninety day period from receipt of the decision for filing suit. Her Title VII allegations in Count I must be dismissed.
Federal law protects people in the United States from being deprived of constitutional rights by a person acting under color of State law. Specifically, 42 U.S.C. § 1983 provides:
Id. Critical to any claim under § 1983 is that the defendant acted under "color" or authority of a state, territory, or D.C. law. "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (internal quotations omitted). Defendants move to dismiss the § 1983 allegations against the Postal Inspectors, arguing that the Postal Inspectors were acting under federal, not D.C., law, and thus are not subject to a § 1983 suit. Ms. McAlister responds that Williams v. United States, 396 F.3d 412 (D.C.Cir.2005), supports her claim.
Ms. McAlister alleges that two U.S. Postal Inspectors came to her home, screamed through her front door, broke her storm door and left threatening messages on her answering machined, which forced her to call the Prince George's County Police Department. Compl. ¶ 7. She contends that she later drove to the Metropolitan Police Department in D.C., where she was arrested, handcuffed and dropped on the sidewalk by the Postal Inspectors; that MPD officers later dropped her on some steps; that she was handcuffed to a wheelchair when taken to the hospital; and that she spent 21 hours in D.C. jail after she was charged with assault on Mr. Fauntleroy. Id. From these allegations, she musters the argument that, "although the USPS Postal Inspectors were federal officers, this was a federal [sic] action because Ms. McAlister has sufficiently alleged that the District of Columbia had authority over the Postal Inspectors and provided significant encouragement and otherwise participated in the arrest and mistreatment of Ms. McAlister." Opp'n. at 8.
Nowhere in the Complaint is there a single allegation that the District of Columbia had authority over the Postal Inspectors and nowhere in the factual recitation of the events on which this claim rests are there facts that would lead to that conclusion. Williams is exactly on point. Williams reasoned that a federal Government Printing Office special police officer's arrest of Mr. Williams could not be called action by the District of Columbia because the officer was a federal official and D.C. had no authority over him and did not "exercise ... coercive power" through him or "provide[] significant encouragement" or "otherwise participate[] in [the officer's] arrest and alleged mistreatment of Williams." Williams, 396 F.3d at 415.
The confluence of federal officials and local police officers in this fact pattern is a necessity of the Federal City. Federal officials enforce federal law. If enforcement of a federal law requires the incarceration of a suspect, federal officials must, perforce, turn their suspect over to the MPD. Thus, the fact that Ms. McAlister was arrested by Postal Inspectors and allegedly dropped by them, and later handed over to MDP officers who also allegedly dropped her, as stated in the Complaint, provides no factual basis for the argument that the MPD exercised coercive power over the Postal Inspectors or participated in the Postal Inspectors' arrest and alleged
Ms. McAlister seeks money damages for the alleged constitutional violations. Compl. at 12 (seeking one million dollars for violations of the Fourth, Fifth and Eighth Amendments). If these claims were intended to proceed against the U.S. Government or the defendants in their official capacities, they are barred by sovereign immunity. It is "axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (noting that absent a specific waiver, the United States government is protected from suit by the doctrine of sovereign immunity). Sovereign immunity bars suits for money damages against the government itself and against public officials sued in their official capacities. Konarski v. Brown, 2004 WL 1249346, *1, 2004 U.S.App. LEXIS 11277, Civ. No. 03-5340, *2 (D.C.Cir.2004); Perkins v. Ashcroft, 275 Fed.Appx. 17, 17 (D.C.Cir.2008) ("To the extent appellant was attempting to sue the former Attorney General in his official capacity, the action is barred by sovereign immunity."); Clark v. Library of Congress, 750 F.2d 89, 102-03 (D.C.Cir.1984). If Ms. McAlister intended to assert a Bivens claim against defendants in any individual capacity, she has not alleged individual liability or served the defendants individually, and the time to do so has run. See Fed.R.Civ.P. 4(m); Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C.Cir.1997) (defendants in Bivens actions must be served in an individual capacity).
To the extent that Ms. McAlister also seeks declaratory and equitable relief on her constitutional claims, they too are barred. Ms. McAlister's constitutional claims based on alleged sex discrimination are preempted by the comprehensive and detailed administrative process created by Congress for dealing with federal employment complaints. Title VII adequately responds to Ms. McAlister's requests for relief as it allows for compensatory damages, backpay, injunctions, and other equitable relief, as appropriate, against the United States. See, e.g., United States v. Burke, 504 U.S. 229, 238, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992); see also 42 U.S.C. § 1981a(b)(1) (amending Title VII to provide for compensatory damages, but precluding punitive damages against government agencies). Therefore, Title VII is the exclusive remedy for any challenge to the Postal Service's actions based on alleged sex discrimination. Brown, 425 U.S. at 835, 96 S.Ct. 1961 (finding Title VII the
Ms. McAlister's claims that Postal Inspectors came to her home, threatened her, left threatening messages on her answering service, and broke her storm door do not invoke the Fourth Amendment, as she alleges, as these actions were neither a search nor a seizure. Instead, these allegations properly sound in tort. The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., provides Ms. McAlister's only remedy here. The FTCA extends a limited waiver of the United States's sovereign immunity, and provides a remedy against the Federal Government for some torts committed by federal employees in the scope of their employment. 28 U.S.C. § 1346(b); Sloan v. Dep't of Housing and Urban Dev., 236 F.3d 756, 759 (D.C.Cir.2001). The FTCA bars claimants from bringing suit, however, until they have exhausted their administrative remedies, which includes the requirement that claimants first bring their claims to the agency, and that the claims have been denied by that agency. McNeil v. United States, 508 U.S. 106, 111, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); see also 28 U.S.C. § 2675(a) ("[a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency."). The exhaustion requirement is jurisdictional. GAF Corp. v. United States, 818 F.2d 901, 904 (D.C.Cir.1987). The Complaint neither contains allegations pursuant to the FTCA nor pleads that Ms. McAlister has exhausted her administrative remedies as to these claims.
Lastly, Ms. McAlister's claims that the Postal Inspectors arrested her and
Even if Ms. McAlister intended to claim that the Postal Inspectors employed excessive force in effectuating her arrest by allegedly dropping her, which is not at all clear, the Complaint fails to plead sufficient facts to support such a claim. A claim of excessive force is "properly analyzed under the Fourth Amendment's `objective reasonableness' standard, which tracks the constitutional text by asking `whether the force applied was reasonable.'" Johnson v. District of Columbia, 528 F.3d 969, 973 (D.C.Cir.2008) (citations omitted). The only possible allegation of force is that the Postal Inspectors "dropped" Ms. McAlister—which can be read as inconsistent with the application of force in that the act of dropping could be a passive or inadvertent act.
The defendants' motion to dismiss for failure to state a claim on which relief can be granted [Dkt. #24] shall be granted. The Title VII allegations are untimely and the constitutional claims are infirm as a matter of law. A memorializing Order accompanies this Memorandum Opinion.
Defs.' Mem., Ex. L (Pre-Arbitration Settlement Agreement) at 1. However, before the Last Chance Agreement was fully negotiated, Ms. McAlister took disability retirement, effective April 17, 2007. Id. at 2. Thus, even if Ms. McAlister had a cognizable property interest in her employment with the Postal Service justifying due process protections, the post-deprivation procedures provided by the Postal Service and her collective bargaining agreement were more than enough to satisfy the requirements of due process. See, e.g., Sloan v. HUD, 231 F.3d 10, 19 (D.C.Cir.2000).
