Porter v. Sebelius

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.
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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,
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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
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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)).
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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
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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.
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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).
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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
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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.
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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.
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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
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