United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on a Motion to Dismiss (the
"Motion," ECF No. 3), filed on November 5, 2018 on
behalf of James Mattis ("Defendant"), the Secretary
of Defense of the United States. Ozie Bradford (pro
se "Plaintiff), who received a copy of
Defendant's Motion and its Memorandum in Support (ECF No.
4), has failed to file any response in opposition.
Accordingly, and pursuant to Local Rule 7(J), the matter is
ripe for this Court's review, and the Court will dispose
of the matter without a hearing because the relevant legal
issues have been sufficiently developed. See Fed. R.
Civ. P. 78.
seeks relief under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e, et seq., and Section
501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791.
Plaintiff is a federal employee with the Defense Contract
Management Agency ("DCMA"), located in Fort Lee,
Virginia, and he alleges that he was subjected to various
forms of harassment and discrimination by his supervisor from
late 2012 through 2014. (Compl. ¶¶ 1, 9-42.) In
addition, Plaintiff alleges that his supervisor revoked
Plaintiffs reasonable accommodation, a flexible work
schedule, without justification. (Id. at ¶ 21.)
has provided additional, relevant documents that are attached
as exhibits to his Memorandum in Support of the Motion to
Dismiss. These exhibits detail the administrative steps
Plaintiff took to prosecute his discrimination claims.
(Def.'s Mem. in Supp. Exs. 1-5, ECF Nos. 4-1-4-5.)
Specifically, Defendant filed a formal complaint of
discrimination on January 16, 2015. (Def.'s Mem. in Supp.
Ex. 1.) Thereafter, Plaintiff requested a hearing before the
Equal Employment Opportunity Commission ("EEOC"),
to which DCMA filed a Motion for Summary Judgment.
(Def.'s Mem. in Supp. Ex. 3.) On May 1, 2018, an EEOC
administrative law judge granted DCMA's Motion for
Summary Judgment. (Id.) DCMA then entered a Final
Agency Action ("FAA") on May 7, 2018.
(Id.) Plaintiff appealed the FAA on June 20, 2018 to
the EEOC's Office of Federal Operations
("OFO"). (Def.'s Mem. in Supp. Ex. 4.) Notably,
in addition to appealing the FAA, Plaintiff also filed the
current civil action on August 17, 2018-this action was filed
before OFO could resolve Plaintiffs appeal.
Motion, Defendant argues that the Court lacks subject matter
jurisdiction over Plaintiffs Complaint because he failed to
properly exhaust his administrative remedies-a factor that is
essential to this Court's jurisdiction over Plaintiffs
claims. (See generally Def.'s Mem in Supp.) The
Court is persuaded by Defendant's arguments, and
consequently, the Court will grant Defendant's Motion for
the reasons detailed below.
STANDARD OF REVIEW
challenge to a court's subject matter jurisdiction can
occur at any point during litigation because subject matter
jurisdiction invokes the court's power to resolve a legal
dispute. See Fed. R. Civ. P. 12(b)(1); Arbaugh
v. Y&H Corp., 546 U.S. 500, 514 (2006) (stating
subject matter jurisdiction can never be forfeited or
waived). A challenge to subject matter jurisdiction under
Rule 12(b)(1) may be facial or factual. A facial challenge
contends that the complaint fails to allege facts upon which
subject matter jurisdiction can be based. In reviewing such a
challenge, "all the facts alleged in the complaint are
assumed to be true and the plaintiff... is afforded the same
procedural protection as he would receive under a Rule
12(b)(6) consideration." Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982).
if a defendant makes a factual challenge to subject matter
jurisdiction, "the district court may then go beyond the
allegations of the complaint and resolve the jurisdictional
facts in dispute by considering evidence outside the
pleadings ...." U.S. ex rel Vuyyuru v. Jadhav,
555 F.3d 337, 348 (4th Cir. 2009) (citing Adams, 697
F.2d at 1219). However, the court's consideration of
information beyond the pleadings does not necessarily convert
a 12(b)(1) motion to one for summary judgment. Evans v.
B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999)
(citation omitted); McBurney v. Cuccinelli, 616 F.3d
393, 409 (4th Cir. 2010) (Agee, J., concurring in part and
dissenting in part) (motions under Rule 12(b)(1) are not
restricted by Rule 12(d)). Regardless of whether a 12(b)(1)
challenge is facial or factual, the plaintiff bears the
burden of proving jurisdiction by a preponderance of
evidence. Jadhav, 555 F.3d at 347-48; Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).
addition, a court must review pro se complaints with
a liberal construction. Laber v. Harvey, 438 F.3d
404, 413 n.3 (4th Cir. 2006). However, this requirement
cannot excuse a clear failure in the pleadings to allege a
federally cognizable claim. See Weller v. Dep't of
Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). As
the Fourth Circuit explained in Beaudett v. City of
Hampton, "[t]hough \pro se] litigants
cannot, of course, be expected to frame legal issues with the
clarity and precision ideally evident in the work of those
trained in law, neither can district courts be required to
conjure up and decide issues never fairly presented to
them." 775 F.2d 1274, 1276 (4th Cir. 1985).
intended for Title VII's protections to apply equally to
federal employees. See 42 U.S.C. § 2000e-16(a),
(c). However, before a federal employee can avail himself of
Title VII's enforcement provisions under 42 U.S.C. §
2000e-5, he must first exhaust the administrative remedies
that are available to him. See generally 29 C.F.R.
§§ 1614, et. seq; Hentosh v. Old Dominion
Univ., 161 F.3d 413, 416 (4th Cir. 2014) ("Prior to
pursuing a Title VII claim in federal court, a plaintiff must
exhaust her administrative remedies by filing a charge of
discrimination with the EEOC") (citation omitted).
"[A] failure by the plaintiff to exhaust administrative
remedies concerning a Title VII claim deprives the federal
courts of subject matter jurisdiction over the claim."
Hentosh, 767 F.3d at 416 (quoting Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009)).
Court now turns to the administrative remedies that are
implicated in the current matter. Following the unsuccessful
outcome of a discrimination complaint, a complainant may
appeal an "agency's final action or dismissal of a
complaint," within 30 days of the receipt of that
decision. 29C.F.R. §§ 1614.401(a), 1614.402.
Furthermore, 29 C.F.R. § 1614.407 states:
A complainant who has filed an individual complaint... is
authorized under title VII, the ADEA and the Rehabilitation
Act to file a civil action in an ...