United States District Court, E.D. Virginia, Alexandria Division
DIONE M. THOMAS, Plaintiff,
JACOBS FEDERAL NETWORK SYSTEMS LLC, Defendant.
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Jacobs Federal
Network Systems LLC ("FNS")'s Motion to
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.
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."
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.
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
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
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.
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."
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.
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.
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 ...