Porter v. Sebelius , 944 F. Supp. 2d 65 ( 2013 )


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  •                    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ______________________________
    :
    WILLIAM PORTER                 :
    :
    Plaintiff,           :
    :
    v.                        :
    :
    KATHLEEN G. SEBELIUS,          : Civil Action No. 11-1546 (GK)
    Secretary of the United        :
    States Department of Health    :
    and Human Services,            :
    :
    Defendant.           :
    ______________________________:
    MEMORANDUM OPINION
    Plaintiff William Porter (“Plaintiff” or “Porter”) brings
    this action against Kathleen Sebelius in her official capacity
    as   Secretary   of       the   Department   of   Health   and   Human   Services
    (“Defendant” or “Secretary”). Plaintiff alleges discrimination,
    retaliation, and hostile work environment in violation of Title
    VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
    2000e   et   seq.,    and       discrimination,   retaliation,    hostile     work
    environment, and failure to provide a reasonable accommodation
    in   violation       of     the    Federal   Rehabilitation      Act     of   1973
    (“Rehabilitation Act”), 
    29 U.S.C. § 701
     et seq. 1
    1
    Although Plaintiff does not mention the Rehabilitation Act,
    proceedings under section 501(b) of the Rehabilitation Act are
    the exclusive remedy for federal employees alleging disability
    discrimination by a federal agency. See Taylor v. Small, 
    350 F.3d 1286
    , 1291 (D.C. Cir. 2003).
    This matter is presently before the Court on Defendant’s
    Motion    for   Partial     Dismissal       of    Plaintiff’s     Amended        and
    Consolidated Complaint [Dkt. No. 49]. Upon consideration of the
    Motion,   Opposition,     Reply,     and    Surreply,     the    entire     record
    herein, and for the reasons stated below, Plaintiff’s Complaint
    is dismissed without prejudice, and Defendant’s Motion is denied
    without prejudice.
    I.   BACKGROUND
    Porter, an African-American male, has worked as a Program
    Analyst at the Department of Health and Human Services (“HHS”),
    Administration    and    Finance     Operations    Section      (“AFS”)    of    the
    Office of Financial Program Analysis (“OFPA”) in the Office of
    the Assistant Secretary of Preparedness and Response since 2007.
    Pl.’s Amended & Consolidated Complaint (“Complaint”) p. 3, ¶ 4.
    On May 24, 2010, Porter filed a complaint with the EEO
    Section   of    the     Department     of    Health     and     Human     Services
    (“Department”).    EEO    Complaint     Final    Agency   Decision,       June    3,
    2011, at 2 n.1 [Dkt. No. 13-1]. The EEO Section permitted him to
    file six amendments adding additional claims to his complaint
    between July 1, 2010, and December 22, 2010. 
    Id.
     On June 3,
    2011, the Department issued its Final Agency Decision (“June
    2011 FAD”) on those claims. Id. at 1.
    –2–
    On August 26, 2011, Porter filed a Complaint in this Court
    seeking review of the June 2011 FAD. [Dkt. No. 1] On October 28,
    2011, Porter’s attorney moved to withdraw [Dkt. No. 7], and his
    Motion was granted by minute order on November 15, 2011.
    On April 8, 2011, Porter filed another complaint with the
    EEO   Section      of   the    Department.         EEO    Complaint          Final      Agency
    Decision,    Dec.       13,    2011    at     1.    The        EEO   Section        accepted
    additional claims for investigation on May 2, 2011, and June 10,
    2011. Id. at 3-4. On December 13, 2011, the Department issued
    its FAD (“December 2011 FAD”) addressing Porter’s second amended
    complaint. Id. at 1.
    On   March     13,   2012,      Porter      filed    a    second       Complaint      in
    District Court seeking review of the December 2011 FAD. Case No.
    12-392, Dkt. No. 1. On April 10, 2012, Case No. 12-1392 was
    consolidated by minute order with Case No. 11-1546.
    On    August      16,    2012,    Porter’s          new    attorney          moved   to
    withdraw. [Dkt. No. 34]          On     September         25,        2012,        the   Court
    granted the Motion to Withdraw, and directed Porter to file an
    amended and consolidated complaint. [Dkt. No. 43]
    Porter, proceeding pro se, timely filed the amended and
    consolidated Complaint on October 26, 2012 [Dkt. No. 47]. On
    November    27,    2012,      Defendant      filed       her    Motion       to    Partially
    Dismiss the Consolidated Complaint (“Motion”). On November 30,
    –3–
    2012, Porter filed an “Answer” to the Motion [Dkt. No. 51], and
    Defendant filed her Reply in support of the Motion on December
    10, 2012 [Dkt. No. 52]. Porter filed a Surreply by permission of
    the court on December 14, 2012 [Dkt. No. 53].
    II.   STANDARD OF REVIEW
    A.    Motions to Dismiss
    Under Rule 12(b)(1), Plaintiff bears the burden of proving
    by a preponderance of the evidence that the Court has subject
    matter jurisdiction. See Shuler v. United States, 
    531 F.3d 930
    ,
    932 (D.C. Cir. 2008). In reviewing a motion to dismiss for lack
    of subject matter jurisdiction, the Court must accept as true
    all   of   the    factual    allegations       set   forth    in    the    Complaint;
    however,      such     allegations       “will    bear     closer     scrutiny     in
    resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion
    for failure to state a claim.” Wilbur v. C.I.A., 
    273 F. Supp. 2d 119
    , 122 (D.D.C. 2003) (citations and quotation marks omitted).
    The   Court      may   consider    matters       outside     the   pleadings.     See
    Herbert v. Nat’l Acad. of Sciences, 
    974 F.2d 192
    , 197 (D.C. Cir.
    1992).     The    Court    may    also    rest    its    decision     on    its   own
    resolution of disputed facts. 
    Id.
    Under Rule 12(b)(6), a plaintiff need only plead “enough
    facts to state a claim to relief that is plausible on its face”
    and   to   “nudge[     ]   [his   or   her]    claims    across     the    line   from
    –4–
    conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 
    550 U.S. 544
    ,     570    (2007).      “[O]nce        a     claim      has   been      stated
    adequately, it may be supported by showing any set of facts
    consistent with the allegations in the complaint.” 
    Id. at 563
    .
    B.   Exhaustion of Administrative Remedies
    “Before filing suit, a federal employee who believes that
    her agency has discriminated against her in violation of Title
    VII must first seek administrative adjudication of her claim.”
    Payne v. Salazar, 
    619 F.3d 56
    , 58 (D.C. Cir. 2010) (citation
    omitted);      see     42   U.S.C.    § 2000e-16(c).            In    addition,          after
    receiving notice of the agency’s final action, a plaintiff must
    file his or her civil action in the appropriate District Court
    within 90 days. 42 U.S.C. § 2000e-16(c); see also Colbert v.
    Potter, 
    471 F.3d 158
    , 160 (D.C. Cir. 2006).
    These exhaustion requirements are not jurisdictional, but
    rather are “similar to a statute of limitations.” Colbert, 
    471 F.3d at 167
    .     Therefore,      they    are    properly         raised    in    a   Rule
    12(b)(6) motion to dismiss. See Rosier v. Holder, 
    833 F. Supp. 2d 1
    , 5 (D.D.C. 2011) (citing Artis v. Bernanke, 
    630 F.3d 1031
    ,
    1034 n.4 (D.C. Cir. 2011)); see also Gordon v. Nat’l Youth Work
    Alliance,      
    675 F.2d 356
       (D.C.      Cir.       1982)   (noting       that   proper
    method for raising a defense of limitation is a motion under
    Rule 12(b)(6)).
    –5–
    Claims under the Rehabilitation Act must be exhausted under
    the same procedures as Title VII claims. 29 U.S.C. § 794a(a)(1)
    (applying procedures associated with Title VII to Rehabilitation
    Act claims). However, unlike Title VII claims, exhaustion of
    administrative      remedies    is    a    jurisdictional        requirement        for
    Rehabilitation Act claims. See Spinelli v. Goss, 
    446 F.3d 159
    ,
    162 (D.C. Cir. 2006). Thus, “the proper method for challenging
    exhaustion    under     the   Rehabilitation       Act    is    a    Rule   12(b)(1)
    motion to dismiss for lack of subject matter jurisdiction.” See
    Rosier, 833 F. Supp. 2d at 5 (citation omitted).
    III. ANALYSIS
    A.    The Difference Between Facts and Claims
    The Secretary’s primary argument is that the majority of
    the Complaint must be dismissed because Porter failed to exhaust
    his administrative remedies. The state of the Complaint makes it
    impossible    for     the   Court    to   fairly   evaluate         the   Secretary’s
    Motion at this time.
    Porter represented to this Court at a Status Conference on
    September 25, 2012, that he is an attorney. Unfortunately, his
    filings thus far make it hard to believe that he is a practicing
    lawyer.   His    Complaint     is    63    pages   long    with       148    separate
    paragraphs.     His    Opposition     to    Defendant’s        Motion,      which   he
    –6–
    inaccurately titled an “Answer to the Motion to Dismiss,” is 124
    pages long and contains 123 separate paragraphs.
    It    is   apparent    that   Plaintiff       is    not   familiar    with    the
    Federal     Rules    of    Civil   Procedure. 2         Federal   Rule    of     Civil
    Procedure 8(a) requires a complaint to contain “(1) a short and
    plain statement of the grounds for the court’s jurisdiction, . .
    .” and “(2) a short and plain statement of the claim showing
    that the pleader is entitled to relief[.]” The claim for relief
    must “be stated with brevity, conciseness, and clarity” and,
    most importantly, give the opposing party “fair notice of the
    nature and basis or grounds of the pleader’s claim.” 5 Arthur R.
    Miller & Mary Kay Kane, Federal Practice and Procedure § 1216 (3d
    ed. 2013).
    Porter’s Complaint does not meet these standards. It is
    rambling, repetitive, and vague. Above all, it fails to give
    notice of the “basis or grounds of the pleader’s claim[s].”
    Porter fails to recognize the important distinction between
    facts     and   claims.    In   his    “Answer,”         he    insists    that    each
    paragraph       of   his   Complaint    is     a    “count”       that    has     been
    2
    Porter also seems unfamiliar with our Local Civil Rules. For
    example, Local Civil Rule 7(c) limits memoranda in opposition to
    45 pages, unless the party receives prior approval from the
    Court. In this case, Plaintiff failed to even ask for, no less
    receive, leave to extend the page limit from 45 pages to the 124
    pages he submitted.
    –7–
    administratively         exhausted.      However,      many      of    the    paragraphs
    consist of mere factual allegations that are insufficient to
    constitute     “claims”         for    which    relief     can    be    granted.        For
    example,      the       statements       that     David       Dolinsky,           Porter’s
    supervisor,      made      to   the    EEO   investigator        do    not    constitute
    actionable claims. See Complaint ¶¶ 27, 28, 65, 74, 101, 103,
    104. While these paragraphs and others may contain facts which
    arguably support Porter’s claims, they are not claims in and of
    themselves. The Complaint does not sufficiently indicate which
    factual allegations form the “basis or grounds” for Porter’s
    claims, as required by Rule 8(a).
    This failing is particularly significant in the employment
    discrimination context because the elements of a Title VII claim
    vary depending on what type of “unlawful employment practice” is
    alleged.   For      both    discrimination       and     retaliation         claims,    the
    plaintiff must identify a particular action 3 and allege that the
    action occurred either because of “race, color, religion, sex,
    national   origin,         age,   or    disability”      or   because        he    or   she
    brought or threatened to bring a discrimination claim. Baloch v.
    3
    The action must rise to the level of an “adverse employment
    action” that affects the “terms, conditions, or privileges of
    employment” to constitute discrimination, but only needs to be a
    “materially adverse action” that “well might have dissuaded a
    reasonable worker from making or supporting a charge of
    discrimination” to constitute retaliation. Baird v. Gotbaum, 
    662 F.3d 1246
    , 1248 (D.C. Cir. 2011) (citations omitted).
    –8–
    Kempthorne,      
    550 F.3d 1191
    ,      1196,       1198    (D.C.      Cir.     2008)
    (citations omitted); Nat’l R.R. Passenger Corp. v. Morgan, 
    536 U.S. 101
    ,     115      (2002)      (determining        that       “[e]ach    incident     of
    discrimination and each retaliatory adverse employment decision
    constitutes         a        separate      actionable           ‘unlawful          employment
    practice’”).        Thus,      a     plaintiff       must     identify       what    specific
    action rises to the level of an unlawful employment practice for
    each discrete claim of discrimination or retaliation.
    Porter       does       not      coherently          identify        what    unlawful
    employment      practices           form   the       basis    for     his     claims.    Most
    paragraphs      begin         by     stating      that       someone        “subjected     the
    plaintiff     to”       or    “condoned”       “retaliation[]         and    discrimination
    against the Plaintiff.” This assertion is made regarding almost
    every incident in the Complaint, including incidents that cannot
    possibly be unlawful employment practices, such as Dolinsky’s
    comments to the EEO investigator. It is impossible to ascertain
    from the Complaint what incidents Porter intends to argue were
    discrete unlawful employment practices, and, thus, the “basis or
    grounds” for his discrimination and/or retaliation claims are
    impossible to ascertain.
    Moreover,         it     is      also     impossible           to     identify      the
    “basis or grounds” for Porter’s hostile work environment claim.
    All actions that contribute to the creation of a hostile work
    –9–
    environment      are        part     of     that      single      unlawful       employment
    practice,     thus        making   such      claims     “different        in    kind”      from
    discrimination and retaliation claims. Morgan, 
    536 U.S. at
    115-
    117. However, the actions must be “similar in nature, frequency,
    and severity” to be considered “part and parcel” of a coherent
    hostile work environment claim. Baird, 
    662 F.3d at 1251
     (quoting
    Wilkie v. Dep’t of Health & Human Servs., 
    638 F.3d 944
    , 951 (8th
    Cir.   2011)).       In    addition,        the    plaintiff       must     identify       what
    protected     status        caused    his     or    her     employer      to    create      the
    abusive working environment. Lee v. Winter, 
    439 F. Supp. 2d 82
    ,
    86 (D.D.C. 2006) (noting that plaintiff needs to “state a causal
    connection between his [protected status] and his hostile work
    environment claim”).
    The   conclusory        language        that     precedes      the      majority      of
    Porter’s allegations states that Porter was “subjected” to “an
    objectively      hostile        work        environment.”         However,      the        facts
    alleged      include       a   wide       spectrum     of       different      behavior      by
    different     people        that     is     clearly       not     “similar     in     nature,
    frequency,     and        severity.”        Moreover,       the    Complaint        does    not
    identify      what        protected        status     allegedly        caused        Porter’s
    supervisors to create a hostile work environment. Thus, it is
    impossible     to     identify        the    “basis       or     grounds”      of    Porter’s
    hostile work environment claim at this time.
    –10–
    B.      Future Proceedings
    Based    on   the   previous    discussion,     it   is    clear    that   the
    Complaint has not been drafted in accordance with the Federal
    Rules. Thus, the Complaint is dismissed without prejudice.
    In order to identify Plaintiff’s claims, the Court will
    permit him – once - to redraft his long, repetitive, and unclear
    Complaint. However, that new Complaint must conform to Rule 8
    and state allegations on “every material point necessary” with
    “brevity,     conciseness,     and   clarity.”    Miller     &    Kane,   supra    §
    1216. The Complaint shall be no longer than fifty pages, at the
    most, and should have consistent font and spacing throughout.
    Plaintiff should also understand that this is an opportunity to
    clarify and structure his existing claims, not an opportunity to
    add   additional     claims    that    have     not   been       raised   in     this
    litigation to date.
    Plaintiff’s     Second   Amended    and    Consolidated       Complaint     is
    due May 24, 2013. Any dispositive motion by Defendant is due
    June 17, 2013. Any opposition to that motion is due August 5,
    2013, and any reply is due August 12, 2013.
    Because the Plaintiff’s Complaint has been dismissed, the
    Secretary’s Motion to Partially Dismiss the Complaint is denied
    without prejudice as moot.
    –11–
    III. CONCLUSION
    For    the   foregoing     reasons,        Plaintiff’s     Complaint    is
    dismissed   without     prejudice     and    Defendant’s    Motion   is   denied
    without    prejudice.    An   Order    shall    accompany     this   Memorandum
    Opinion.
    /s/________________________
    May 14, 2013                                 Gladys Kessler
    United States District Judge
    Copies to: attorneys on record via ECF
    and to
    WILLIAM H. PORTER
    12710 Thrush Place
    Upper Marlboro, Maryland 20772
    –12–