Morris v. Office of Personnel Management ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
)
DEBORAH MORRIS, )
)
Plaintiff, )
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v. ) Civil Action No. 20-0016 (EGS)
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OFFICE OF PERSONNEL MANAGEMENT, )
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Defendant. )
______________________________________ )
MEMORANDUM OPINION
This matter is before the Court on defendant’s Motion to Dismiss
(ECF No. 20) and plaintiff’s “Motion to Rule on Constitutional
Questions of Office of Personnel Management, et. al. Shield of
Sovereign Immunity Given Their Systemic Paradigm Hiring Structure –
Does or Does Not Violate Plaintiff[’s] Constitutional Rights of ‘Equal
Protection’ Under the Law” (ECF No. 26). For the reasons discussed
below, the Court grants the former and denies the latter.
I. BACKGROUND
Plaintiff filed her original complaint (ECF No. 1, “Compl.”) on
January 2, 2020. After plaintiff filed a document (ECF No. 14) later
identified (ECF No. 16) as a supplement to her original complaint, by
Minute Order on July 20, 2020, the Court directed plaintiff to file an
amended complaint setting forth in a single pleading the allegations
of her original complaint and its supplement. Plaintiff filed the
amended complaint (ECF No. 19, “Am. Compl.”) on August 5, 2020.
Plaintiff, who was born in 1950, see Compl. at 4, explains that
she had retired for health reasons, Am. Compl. at 7. Now that her
“health is stable [she] desir[es] work to sustain [her] Life.” Id.
She allegedly has a “severe physical disability and can be considered
for employment under Schedule A hiring authority 5 CFR 213.3102(u).”
Id., Attach. IV (ECF No. 19-1 at 24); see id. at 7.1
Plaintiff alleges that she has applied for employment with the
federal government via USAJOBS.com, the website of the United States
Office of Personnel Management (“OPM”), see Am. Compl. at 3-5, and was
not selected for any, see id. at 5. According to plaintiff, the
algorithm OPM applies is biased against applicants who are older,
disabled, or who are not currently federal employees. See id. She
finds the application process “very [c]onfusing and frustrating,” and
“complicated applications [have] caused [her] enormous problems with
comprehension[] as well as accessibility[.]” Id. at 10-11. Plaintiff
claims to have met all the qualifications for each position for which
she applied, yet she neither was interviewed nor selected for a
position. See id. at 12. As a result, plaintiff claims, OPM “has
caused [her] undue Stress, Limitations and Sadness[] – depriving [her]
of [her] ‘NATURAL RIGHTS’ – ‘GOD GIVEN RIGHTS’ under the U.S.
Constitution – an American Citizen who is 70.” Id. at 13 (emphasis in
original). She demands compensation of $50 million for the alleged
denial of her ‘“Natural Right’ – ‘God Given Right’ – As set forth
within the Constitution = Natural and Unalienable Rights – ‘LIFE,
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Under Schedule A, a government “agency may appoint, on a permanent,
time-limited, or temporary basis, a person with an intellectual
disability, a severe physical disability, or a psychiatric disability
according to the provisions” set forth in the regulation. 5 C.F.R. §
213.3012(u).
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LIBERTY AND THE PURSUIT OF HAPPINESS’.” Id. at 14 (emphasis in
original).
II. DISCUSSION
A. Legal Standards
1. Dismissal for Lack of Subject Matter Jurisdiction
Because “[f]ederal courts are courts of limited jurisdiction, . .
. [i]t is . . . presumed that a cause lies outside this limited
jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994), and the plaintiff bears the burden of establishing a
basis for the Court’s jurisdiction, see Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). In assessing whether it has
jurisdiction, the Court “assume[s] the truth of all material factual
allegations in the complaint and construe[s] the complaint liberally,
granting plaintiff the benefit of all inferences that can be derived
from the facts alleged[.]” Am. Nat. Ins. Co. v. FDIC, 642 F.3d 1137,
1139 (D.C. Cir. 2011) (internal quotation marks and citations
omitted). However, the Court “need not limit itself to the
allegations of the complaint,” and “may consider such materials
outside the pleadings as it deems appropriate to resolve the question
[of] whether it has jurisdiction in the case.” Rann v. Chao, 154 F.
Supp. 2d 61, 61 (D.D.C. 2001).
2. Dismissal for Failure to State a Claim On Which Relief
Can Be Granted
A plaintiff need only provide a “short and plain statement of
[her] claim showing that [she] is entitled to relief,” Fed. R. Civ. P.
8(a)(2), that “give[s] the defendant fair notice of what the . . .
claim is and the grounds upon which it rests,” Erickson v. Pardus, 551
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U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)) (internal quotation marks omitted). A
complaint may be dismissed for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a
Rule 12(b)(6) motion, the “complaint is construed liberally in the
plaintiff[’s] favor, and [the Court] grant[s] [a] plaintiff[] the
benefit of all inferences that can be derived from the facts alleged.”
Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000). However, “the [C]ourt need not accept inferences drawn by
[the] plaintiff[] if such inferences are unsupported by the facts set
out in the complaint.” Kowal, 16 F.3d at 1276. Nor must the Court
accept “a legal conclusion couched as a factual allegation,” nor
“naked assertions devoid of further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
see also Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525
F.3d 8, 16 n.4 (D.C. Cir. 2008) (noting that the D.C. Circuit has
“never accepted legal conclusions cast in the form of factual
allegations” (internal quotation marks omitted)).
A complaint survives a motion under Rule 12(b)(6) only if it
“contain[s] sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Iqbal, 556 U.S. at
678. A claim is facially plausible “when the plaintiff pleads factual
content that allows the [C]ourt to draw [a] reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “[A] complaint [alleging] facts that are
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merely consistent with a defendant’s liability . . . stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. (internal quotation marks omitted) (citing Twombly, 550
U.S. at 557). Although a pro se complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers,”
Erickson, 551 U.S. at 94 (internal quotation marks and citation
omitted), it too, “must plead ‘factual matter’ that permits the court
to infer ‘more than the mere possibility of misconduct,’” Atherton v.
District of Columbia Office of the Mayor, 567 F.3d 672, 681-82 (D.C.
Cir. 2009) (quoting Iqbal, 556 U.S. at 678-79).
B. The Declaration of Independence
Defendant observes, see Mem. of P. & A. in Support of Def.’s Mot.
to Dismiss (ECF No. 20-1, “Def.’s Mem.”) at 7, that certain language
plaintiff adopts, such as the phrase “Life[,] Liberty, and the pursuit
of Happiness,” Am. Compl. at 14, is derived from the Declaration of
Independence. Because the Declaration of Independence “does not
confer jurisdiction upon the federal courts,” defendant moves to
dismiss the amended complaint for lack of subject matter jurisdiction.
Def.’s Mem. at 7-8.
To the extent plaintiff relies on the Declaration of Independence
as a basis for this Court’s jurisdiction, her reliance is misplaced.
See Coffey v. United States, 939 F. Supp. 185, 191 (E.D.N.Y. 1996)
(“While the Declaration of Independence states that all men are
endowed certain unalienable rights including ‘Life, Liberty and the
pursuit of Happiness,’ . . . it does not grant rights that may be
pursued through the judicial system.”); Bowler v. Welsh, 719 F. Supp.
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25, 26 (D. Me. 1989) (“We have no jurisdiction over claims allegedly
arising under the Declaration of Independence.”).
C. Disability Discrimination
Defendant presumes, see Def.’s Mem. at 9, that a disability
discrimination claim would proceed under the Rehabilitation Act,
pursuant to which a federal government employer must take “affirmative
action . . . for the hiring, placement, and advancement of individuals
with disabilities,” 29 U.S.C. § 791(b).
1. Exhaustion of Administrative Remedies
The Court may entertain a claim under the Rehabilitation Act only
if a plaintiff has raised the claim at the administrative level. See
Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006) (remanding case
for dismissal of “Rehabilitation Act claim for lack of jurisdiction on
the ground that [plaintiff] failed to exhaust his administrative
remedy”); see also Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir.
2003) (expressing “doubt the district court would have had
jurisdiction to entertain [Rehabilitation Act claim] because
[plaintiff] failed to exhaust her administrative appeal rights”). In
this sense, the Rehabilitation Act’s exhaustion requirement is
jurisdictional. Spinelli, 446 F.3d at 162; see Doak v. Johnson, 798
F.3d 1096, 1103 (D.C. Cir. 2015) (noting that Spinelli “addressed the
jurisdictional consequence of a plaintiff’s wholesale failure to file
an administrative complaint or to obtain any administrative decision
at all”).
Applicable regulations require that a complainant “consult a
Counselor prior to filing a complaint in order to try to informally
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resolve the matter,” and that such contact must occur “within 45 days
of the date of the matter alleged to be discriminatory[.]” 29 C.F.R.
§ 1614.105(a)(1). At most, plaintiff alleges she engaged in “Several
Hours and days of Mediations with EEOC Representative Leona Bedrossian
and DHHS of Equal Employment Opportunity Compliance and Operations
Director Cynthia Richardson-Cook.” Am. Compl. at 13. Presumably
“DHHS” refers to the U.S. Department of Health and Human Services.
Any consultation or mediation in which plaintiff may have engaged with
DHHS has no bearing on this case. DHHS is not a party defendant, and
in this case plaintiff alleges that OPM, not DHHS, discriminated
against her.
Because plaintiff does not demonstrate exhaustion of
administrative remedies as to OPM, this Court has no jurisdiction over
a Rehabilitation Act claim. See Koch v. White, 744 F.3d 162, 165
(D.C. Cir. 2014) (affirming dismissal of Rehabilitation Act claim for
failure to exhaust administrative remedies); see also 29 C.F.R. §
1614.407.
2. Allegations of the Amended Complaint
Even if plaintiff had exhausted a Rehabilitation Act claim,
defendant argues that the claim must fail. See Def.’s Mem. at 10-11.
Defendant points to plaintiff’s exhibits, see Am. Compl., Ex. (ECF No.
19-1 at 17-20, 45-53), indicating that she applied for positions at
the National Institutions of Health, Uniformed Services University of
the Health Sciences and DHHS. Defendant also proffers that plaintiff
applied for 105 positions posted by various agencies via USAJOBS.gov
between August 2019 and September 2020. See Def.’s Mem., Ex. (ECF No.
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20-2). “[N]one of these positions were within OPM.” Id. at 11.
Thus, defendant asserts, because “OPM . . . had no involvement in
employment determinations for positions outside OPM,” plaintiff fails
to state a Rehabilitation Act claim against OPM. Id. at 10; see id.
at 13.
In addition, defendant argues that plaintiff fails to allege that
she suffered an adverse employment because of her disability. See id.
at 13. The “two essential elements of a discrimination claim [under
the Rehabilitation Act] are that (i) the plaintiff suffered an adverse
employment action (ii) because of the plaintiff’s . . . disability.”
Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (citations
omitted). For purposes of this discussion, the Court presumes that
plaintiff has a disability as evidenced by her doctor’s certification.
See Am. Compl., Attach. IV. Missing from her amended complaint,
however, are any factual allegations from which to draw a reasonable
inference that OPM is liable for discriminating against plaintiff
because of a disability. Her general assertions, for example, of
“Failure To Accommodate . . . Disability In Plaintiff’s recruiting,
Applications submissions [and] processing,” Am. Compl. at 5, do not
suffice absent some allegation that plaintiff actually sought an
accommodation from OPM. Similarly, general assertions of systemic
discrimination, see id. at 12, do not support a claim that plaintiff
herself suffered an adverse employment action by OPM because of her
disability.
The Court concurs with defendant’s assessment that the complaint,
as amended, fails to state a Rehabilitation Act claim against OPM.
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D. Age Discrimination
1. Exhaustion of Administrative Remedies
An age discrimination claim would proceed under the Age
Discrimination in Employment Act (“ADEA”), see 29 U.S.C. §§ 621-34,
which requires that “[a]ll personnel actions affecting . . .
applicants for employment who are at least 40 years of age . . . be
made free from any discrimination based on age,” 29 U.S.C. § 633a(a).
Unlike a claim under the Rehabilitation Act, plaintiff’s apparent
failure to exhaust her administrative remedies does not deprive the
Court of jurisdiction. See Achagzai v. Broad. Bd. of Governors, No.
17-CV-612, 2018 WL 4705799, at *4 (D.D.C. Sept. 30, 2018) (noting that
ADEA lacks a jurisdictional exhaustion requirement); Koch v. Walter,
934 F. Supp. 2d 261, 269 (D.D.C. 2013) (“By contrast [with the
Rehabilitation Act], failure to exhaust under the ADEA and Title VII
is an affirmative defense, not a jurisdictional requirement.”); see
also 29 C.F.R. § 1614.201(a).
2. Allegations of the Amended Complaint
Exhaustion aside, defendant deems the amended complaint deficient
for its failure to allege facts to support an age discrimination
claim. See Def.’s Mem. at 12. Generally, “[t]o establish
a prima facie case under the ADEA, for a claim involving a failure to
hire, the plaintiff must demonstrate that (1) she is a member of the
protected class (i.e., over 40 years of age); (2) she was qualified
for the position for which she applied; (3) she was not hired; and (4)
she was disadvantaged in favor of a younger person.” Teneyck v. Omni
Shoreham Hotel, 365 F.3d 1139, 1155 (D.C. Cir. 2004). While plaintiff
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need not plead each element of a prima facie case to survive a motion
to dismiss, see Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir.
2014), still she “must . . . plead sufficient facts to show a
plausible entitlement to relief,” Fennell v. AARP, 770 F. Supp. 2d
118, 127 (D.D.C. 2011).
Defendant argues that plaintiff “cannot state any disparate
treatment claim under the ADEA” because she does not allege that she
sought employment with OPM. Def.’s Mem. at 12. The Court concurs.
On review of the complaint, as amended, the Court concludes that the
few facts alleged fail to demonstrate a plausible age discrimination
claim.
III. CONCLUSION
For the reasons discussed above, the Court will grant defendant’s
motion and deny plaintiff’s motion. An Order is issued separately.
Signed: Emmet G. Sullivan
United States District Judge
Dated: May 28, 2021
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