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Nichols v. Truscott

March 30, 2006


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment. Plaintiff's pro se complaint asserts Title VII and other claims arising from years of alleged harassment and abusive behavior by plaintiff's co-workers and superiors at the Bureau of Alcohol, Tobacco and Firearms ("ATF"),*fn2 where plaintiff has worked since about 1977. Plaintiff has filed two motions for injunctive relief based on the claims set forth in her Second Amended Complaint, as well as on another apparent claim of discrimination related to the relocation to West Virginia of the ATF's Firearms, Explosives, and Arson Services Division ("FEAS"), where plaintiff currently is employed.*fn3

Upon consideration of the arguments of the parties and the entire record in this case, and for the reasons stated below, the Court grants defendant's motion in its entirety and denies plaintiff's motions for injunctive relief.


Plaintiff Barbara Buckles, an African-American female, has been employed by the ATF since starting there as a clerk typist in 1977. See Second Amended Complaint (Mar. 31, 2005) ("Compl.") ¶ 7. In 1983 she began work with the Firearms, Explosives, and Arson Services Division, and has worked in several branches within that division. She currently works as a Specialist (GS-level 12) in the Firearms and Explosives Imports Branch ("FEIB"), a sub-unit of the FEAS, where she has been since 1996. See id. ¶¶ 8, 10, 12.

According to the allegations in the Second Amended Complaint, plaintiff's experience working in the FEIB has been unpleasant, to say the least. The 67-page complaint alleges myriad instances of harassment and abuse by plaintiff's supervisors and co-workers, including (1) the assignment to plaintiff of menial or inconsequential duties, see Compl. ¶¶ 50-53, 63; (2) denial of promotions and failure to select plaintiff for positions she applied for, see Compl. ¶¶ 26, 34; (3) denial of recognition for plaintiff's hard work and accomplishment, see Compl. ¶¶ 31, 41, 98; (4) abusive behavior by plaintiff's co-workers, see Compl. ¶¶ 37-41, 105; and (5) failure by management to address adequately plaintiff's complaints, see Compl. ¶¶ 45, 58. Other allegations in the complaint focus not on plaintiff's working conditions, but on the favorable treatment afforded to her co-workers, many of whom are also African-American females. Plaintiff also makes some general allegations regarding the favorable treatment afforded by management to Hispanic and Caucasian employees vis a vis African-American employees. Significant portions of the complaint also are devoted to criticizing the poor judgment and inadequate work performance of plaintiff's co-workers and superiors. See, e.g., Compl. ¶¶ 44, 47, 49, 54-55, 59-60, 71, 90, 98, 100.

Plaintiff has sought administrative recourse for her grievances on several occasions; however, she has filed and allowed to be processed and investigated only one formal complaint, EEOC Number 100-A1-7913.*fn4 Plaintiff initially sought EEO counseling on March 28, 2000. She filed a formal complaint on April 25, 2000. An investigation ensued, and a three-day administrative hearing was held in October and November of 2002. Ten witnesses testified.

On April 25, 2003, the EEOC administrative judge who conducted plaintiff's hearing issued a finding of no discrimination on plaintiff's complaint. See Nichols v. Snow, EEOC No. 100-A1-7913X (EEOC Apr. 25, 2003) ("EEOC Decision"). On July 9, 2003, the Department of Justice issued a Final Order finding no discrimination and fully implementing the EEOC Administrative Judge's decision. See Department of Justice Final Order in the Case of Barbara A. Nichols v. Bureau of Alcohol, Tobacco and Firearms, D.J. No. 187-9-5 (July 9, 2003) ("DOJ Order").*fn5 This action followed.

Plaintiff's Second Amended Complaint, filed on March 31, 2005, advances eight claims for relief: discrimination on the basis of plaintiff's race and sex (Count I); defamation (Count II); gross mismanagement (Count III); hostile work environment (Count IV); harassment/hostility (Count V); retaliation - reprisal (Count VI); negligence (Count VII); and exemplary and punitive damages (Count VIII).*fn6 The complaint names former ATF Director Bradley A. Buckles and former United States Attorney General John Ashcroft as defendants.*fn7


Defendants have filed a motion to dismiss plaintiff's complaint or, in the alternative, for summary judgment on all of plaintiff's claims. Defendants' motion raises numerous arguments, the most salient of which are that: (1) plaintiff has failed to exhaust her administrative remedies for many of her claims; (2) much of the conduct of which plaintiff complains does not constitute an "adverse employment action" under Title VII; (3) plaintiff has failed to allege facts sufficient to establish a hostile work environment; (4) several of the putative causes of action in plaintiff's complaint do not exist or do not apply in this context; and (5) because the United States Attorney General is the only proper defendant in this case, all other defendants should be dismissed from the action.*fn8 The Court grants defendants' motion with respect to all claims.

A. Standards For Motions To Dismiss And For Summary Judgment

A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure should not be granted unless the plaintiff can demonstrate no set of facts that supports her claim entitling her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1117 (D.C. Cir. 2000). In evaluating the motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997). While the complaint is to be construed liberally, the Court need not accept factual inferences drawn by the plaintiff if those inferences are not supported by facts alleged in the complaint, nor must the Court accept the plaintiff's legal conclusions. See Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996); Kowal v. MCI Commc'n Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

When evaluating a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court may dispose of the motion on the basis of the complaint alone, but also may consider materials beyond the pleadings. "[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). This Court has interpreted Herbert to allow a court to "consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d at 197), aff'd Scolaro v. D.C. Bd. of Elections and Ethics, No. 00-7176, 2001 U.S. App. LEXIS 2747, at *1 (D.C. Cir. Jan. 18, 2001); see also Ass'n of Merger Dealers, LLC v. Tosco Corp., 167 F. Supp. 2d 65, 69 (D.D.C. 2001); Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001). When a motion to dismiss under Rule 12(b)(1) has been filed, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Research Air, Inc. v. Norton, 2006 U.S. Dist. Lexis 10784, at *14-*15 (D.D.C. 2006); Felter v. Norton, 412 F. Supp. 2d 118, 2006 U.S. Dist. Lexis 2642, at *5 (D.D.C. 2006); Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 & n.3 (D.D.C. 2003).

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits or declarations, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On a motion for summary judgment, the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When considering a summary judgment motion, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). If, however, the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. To defeat summary judgment, a plaintiff must have more than "a scintilla of evidence to support [her] claims." Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).

B. Exhaustion Of Administrative Remedies

Federal employees must exhaust their administrative remedies before filing suit under Title VII. See 42 U.S.C. § 2000e-16(c); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Employees who allege discrimination must consult with an agency EEO counselor before filing a written complaint with the agency accused of discriminatory practices. See 29 C.F.R. § 1614.105(a); 29 C.F.R. § 1614.106(a)-(c). The agency must then investigate the matter, after which the complainant may demand an immediate final decision from the agency or a hearing before an EEOC administrative judge. See 29 C.F.R. § 1614.106(e)(2); 29 C.F.R. § 1614.108(f). Complainants may file a civil action after receiving a final decision from the agency or after a complaint has been pending before the EEOC for at least 180 days. See 42 U.S.C. § 2000e-16(e); 29 C.F.R. § 1614.407. "Complainants must timely exhaust these administrative remedies before bringing their claims to court." Bowden v. United States, 106 F.3d at 437; see Price v. Greenspan, 374 F. Supp. 2d 177, 184 (D.D.C. 2005) ("federal employees may only bring Title VII lawsuits in federal district court if they have exhausted remedies available through administrative processes."); Baker v. Library of Cong., 260 F. Supp. 2d at 65 ("Title VII confers the right to file a civil action in federal court only when a party has been 'aggrieved by the final disposition of his [administrative] complaint, or by the failure to take final action on his complaint.'") (quoting 42 U.S.C. § 2000e-16(c)).*fn9 The exhaustion of administrative remedies is not a jurisdictional requirement of the statute, however; the failure to exhaust is an affirmative defense that must be raised by the defendant (and has been in this case). See Francis v. City of New York, 2 ...

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