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Totten v. Norton

March 21, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


This case is before the Court on plaintiff Gregory Totten's complaint that he suffered a discriminatory reprisal under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, while working for the United States Department of the Interior. In addition to the reprisal claim, plaintiff contends that he is entitled to recover damages from the agency based on three tort theories: negligence, negligent supervision, and intentional infliction of emotional distress. Defendant has filed a motion to dismiss the claims or, in the alternative, for summary judgment. For the reasons set forth below, the Court concludes that the government's motion to dismiss should be granted.


Plaintiff is an employee of the National Parks Service ("NPS"), which is a division of the Department of the Interior. On October 7, 1999, he was removed from his position as an automotive worker at the NPS's Brentwood Maintenance Facility in Washington, D.C. Totten filed a formal complaint with the agency's Equal Employment Opportunity ("EEO") office, alleging that he was discriminated against based upon a physical disability. On October 23, 2000, the agency issued a final agency decision that concluded plaintiff had suffered unlawful discrimination.

During the period between plaintiff's removal and his eventual reinstatement -- i.e., while he was not a federal employee -- plaintiff entered the Brentwood facility on at least two occasions to see his former co-workers. Following one of these visits, on August 15, 2001, supervisors at the facility circulated a memorandum stating that, because plaintiff was not a federal employee, he was not allowed on the Brentwood facility without prior approval from the Branch Chief of Transportation.

On September 10, 2001, Totten resumed work for the NPS and was assigned to the George Washington Memorial Parkway. Two months later, on November 7, 2001, plaintiff was given the task of repairing a government vehicle. He spoke to his supervisor, Mike Vidal, about the need to create a custom-made panel for the vehicle. Plaintiff believed that the necessary technology to make the panel could be found at the Brentwood facility, and he told Mr. Vidal that he would be willing to go to Brentwood to talk with one of his former supervisors, William Newman, about the panel. Mr. Vidal gave plaintiff permission to go to the Brentwood facility but did not provide plaintiff with a work order or call ahead to alert the facility of plaintiff's arrival and business purpose. When plaintiff arrived at the Brentwood facility, he was driving a government vehicle and wearing an NPS uniform. Plaintiff told the security guard that he wanted to speak with Mr. Newman, but did not tell the guard the purpose of his visit.

Mr. Newman was summoned, and he approached the security entrance. Without speaking to plaintiff, Mr. Newman informed the guard that he had no knowledge of plaintiff's visit and that plaintiff was only to enter the facility with prior approval. The guard put plaintiff on the phone with the guard's supervisor, who instructed plaintiff that if he did not leave the facility, the United States Park Police would be called and plaintiff would be arrested. Plaintiff left the Brentwood facility without further incident.

Plaintiff commenced this civil action on November 26, 2004, alleging that his non-admittance to the Brentwood facility was a reprisal for earlier Title VII-protected activity.*fn2 Plaintiff claims that the embarrassment and humiliation he suffered when he was barred from the Brentwood facility in front of his former co-workers caused him emotional distress and psychological damage. Plaintiff also alleges that the actions of the supervisors at the Brentwood facility amounted to tortious conduct.


I. Reprisal Discrimination

Title VII requires, among other things, that federal government workplaces be free of discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16(a). It also shields federal employees from reprisal actions by their employer by making it unlawful to discriminate against an employee because the employee "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a); Rochon, slip op. at 7-8 (concluding that section 2000e-3(a) applies to federal employment actions through the language of 42 U.S.C. § 2000e-16). Plaintiff claims that the events of November 7, 2001, constituted an unlawful reprisal action. Defendant, however, has moved to dismiss the claim on the ground that plaintiff has failed to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).*fn3

A. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) will not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Pharmaceuticals, Inc. v. Broudo, 125 S.Ct. 1627, 1634 (2005) (quoting Conley, 355 U.S. at 47). "Given the Federal Rules' simplified standard for pleading, '[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

Under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Conclusory legal and factual allegations, however, need not be ...

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