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Thomas v. Jacobs Federal Network Systems LLC

United States District Court, E.D. Virginia, Alexandria Division

July 27, 2016

DIONE M. THOMAS, Plaintiff,



         THIS MATTER comes before the Court on Defendant Jacobs Federal Network Systems LLC ("FNS")'s Motion to Dismiss.

         FNS moves to dismiss the retaliation claims asserted against it by Plaintiff under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"), as alleged in her Second Amended Complaint. Plaintiff brings two counts, Retaliation for Protected Activity and Termination of Employment as Retaliatory. The counts must be dismissed under Rules 12(b) (1) and 12(b) (6) of the Federal Rules of Civil Procedure ("FRCP") for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

         On February 9, 2015, Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") Charge of Discrimination against "Jacobs Engineering, " alleging that she was denied a promotion because of her gender. Plaintiff alleged that although she was "paid by subcontractor Sotera Defense, Jacobs Engineering holds the prime contract on which I work, and controls my schedule and directs my day-to-day work." She asserted that in November 2014, she "expressed an interest in promotion to a position as Network Technician, Tier III, through Sotera Defense" and that she "was told there were no Tier III openings available." She contended that she later learned that a "lesser qualified male was selected for promotion to the Tier III position by FNS Engineering."

         On April 27, 2015, Plaintiff filed a second EEOC charge against "Jacobs Engineering Group Inc[.]" alleging both sex discrimination and retaliation. In her second charge, Plaintiff alleged that she "was passed over for promotion when a male colleague was promoted to Tier III." She stated that she "complained with the Department of Human Resources of Sotera Defense" but "continued to be denied career progression." Plaintiff concludes that FNS violated Title VII by subjecting her to discrimination on the basis of her gender and in retaliation for having filed her first EEOC Charge. On April 29, 2015, the EEOC issued a Dismissal and Notice of Rights with the same number as the second EEOC Charge, informing Plaintiff of her right to assert Title VII claims within ninety days of receiving the notice.

         On May 7, 2015, Plaintiff filed a Complaint against "FNS Jacobs" claiming that she was denied promotion because of her gender. The two-page Complaint did not allege that Plaintiff was employed by FNS, did not state that she ever applied for the position in question, and did not identify the legal basis for her cause of action. The Complaint expressly alleged that Plaintiff is employed by Sotera Defense Solutions, Inc. ("Sotera"). While Plaintiff attached a copy of her first EEOC Charge to the Complaint, she did not attach copies of her second EEOC Charge or Notice of Rights.

         Plaintiff had until September 4, 2015-120 days after filing the Complaint on May 7, 2015-to serve the summons and Complaint on FNS. She did not do so. Accordingly, on September 21, 2015, the Court entered an Order directing Plaintiff to show cause by 5:00 p.m. on Wednesday, October 7, 2015, why her case should not be dismissed for insufficient service of process pursuant to FRCP 4 (m) . Plaintiff requested twenty-one additional days to effect service, explaining that her noncompliance with Rule 4(m) was the result of ''further burdens' [sic] and damages, (e.g. monetary, increased risk of losing security TS/SCI clearance)."

         On October 16, 2015, the Court entered an Order concluding that Plaintiff ''failed to establish any good cause for not having complied with the service requirements of Rule 4(m)." Nevertheless, "as a matter of grace, " the Court granted Plaintiff's request for an extension of time to effect service of process:

[P]laintiff may have until 5:00 p.m., Friday, November 6, 2015, to effect proper service of the complaint and summons on defendant in accordance with Rule 4 (m), Fed.R.Civ.P. Plaintiff must also file an appropriate proof of service affidavit by 5:00 p.m., Friday, November 6, 2015. In the event plaintiff fails to effect proper service on defendant by November 6, 2015, or to file an appropriate proof of service affidavit by that date, this matter will be promptly dismissed without prejudice pursuant to Rule 4(m), Fed. R. Civ. P.

Doc. 7.

         Plaintiff did not comply with the Court's Order of October 16, 2015. Instead, on October 23, 2015, she filed an Amended Complaint against FNS and five additional defendants-FNS employees Kenuana Engram, Patricia Shea, and Vernon Saunders (collectively, "FNS Individual Defendants'7); Sotera; and Sotera employee Deborah Drake ("Drake"). The Amended Complaint contained the same allegations as the original Complaint, adding a claim for "retaliation of prior Title VII."

         On December 23, 2015, Defendant FNS entered a limited and special appearance on behalf of FNS to bring a motion to dismiss Plaintiff's claims for insufficient service of process under FRCP 4 (m) and 12(b) (5), and a motion to dismiss for failure to state a claim under FRCP 12(b) (6). The remaining defendants also filed motions to dismiss.

         The Court heard oral argument on the motions to dismiss on January 29, 2016. The Court dismissed with prejudice Plaintiff's claims against Sotera, Drake, and the FNS Individual Defendants. The Court stated from the bench that it would dismiss Plaintiff's claims against FNS without prejudice, with leave to properly serve FNS within three weeks. Later the same day, the Court issued a written order later the same day denying FNS7 motion to dismiss for insufficient service of process, directing Plaintiff to serve FNS by 5:00 p.m. Friday, February 19, 2016.

         During open court the morning of January 29, 2016, in the presence of Sotera's counsel who was seated in the gallery and in attendance, Plaintiff breached her confidentiality obligations to Sotera and the U.S. Government. In so doing, Plaintiff committed a security violation in breach of her obligations under the National Industrial Security Program Operating Manual ("NISPOM"), and her Non-Disclosure Agreement with the U.S. Government per her security ...

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