United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter is before the court on the motion to dismiss for lack of subject matter jurisdiction by the United States of America ("United States") (DE 18), which the court construed in its September 18, 2014, order as a motion to dismiss by defendant Everett. (DE 21). By that same order, the court allowed plaintiff an extension of time to respond to the motion to dismiss, and plaintiff timely filed her response. In this posture, the issues raised are ripe for ruling.
Plaintiff, a United States Postal Service employee, commenced the instant action pro se in Wake County Superior Court, using a state court complaint form, dated May 1, 2014, "for no-contact order for stalking or nonconsensual sexual conduct, " with regard to an April 5, 2014, incident during which defendant Annie Everett ("Everett"), a United States Postal Service Supervisor, allegedly grabbed her hand at work. She complained of constant harassment and torment inflicted upon her for the year prior, which required medical treatment. In her state court complaint form, plaintiff sought permanent and temporary no-contact orders, cessation of harassment, and a court order that Everett be refrained from entering or remaining present at plaintiff's place of employment, among other things. Plaintiff did not seek any monetary damages.
The United States removed this action on June 5, 2014, in tandem with its certification that Everett was acting within the official scope of her employment as a United States Postal Service Supervisor at all times of the alleged harassment of plaintiff. Also on June 5, 2014, the United States filed a motion to dismiss for lack of jurisdiction (DE 4), to which plaintiff responded in opposition. The United States asserted it should be and is substituted as the party defendant, and that the matter be dismissed for failure to exhaust administrative remedies under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.
Plaintiff offered a response by letter to the motion to dismiss, on June 30, 2014, wherein she referred to a lengthy career with the United States Postal Service, which turned dramatically, upon her placement at the Avent Ferry Post Office, under the supervision of Everett, in April 2013. She amplified upon her allegations with specific instances of Everett's allegedly abusive and threatening behavior towards her. She referred to an attempt to secure redress through intervention of the Postmaster on March 20, 2014, which resulted, she writes, in agreement that she would be assigned a new supervisor and Everett would have no involvement with her.
Then, on April 5, 2014, she asserted, Everett attempted to grab a scanner from plaintiff and in doing so grabbed plaintiff's hand. Plaintiff asserted that this conduct is in violation of Postal Service policy against violent and threatening behavior, and nothing has been done by the Postal Service to remedy this violation. Plaintiff claimed that Everett created a hostile work environment and the Postal Service had allowed such behavior to persist.
By order entered August 11, 2014, the court noted that the United States's characterization of the action as one sounding in tort was incorrect, where plaintiff did not seek damages, but rather only prospective injunctive relief. Accordingly, the court denied the United States's motion to dismiss premised upon the FTCA and struck the certification and substitution by the United States.
On August 19, 2014, the United States filed a renewed motion to dismiss (DE 10), wherein it asserted lack of subject matter jurisdiction over plaintiff's claims construed as arising under Title VII, due to failure to exhaust, as well as lack of merit in plaintiff's claim for injunctive relief. The court struck this renewed motion to dismiss, by order entered August 21, 2014, where it was filed by the United States and not by Everett.
On September 9, 2014, the United States filed the instant motion to dismiss, noting that it is unclear from the wording of the complaint whether it is a tort matter or a Title VII claim. Construing the action as a Title VII claim, the United States seeks dismissal on the basis of failure to comply with statutory requirements for bringing such an action, on behalf of Everett. Upon review of the motion, recognizing considerable confusion on the part of Everett "in light of the diffuse legal basis for the claim for injunctive relief asserted by plaintiff, " the court construed the motion to dismiss filed by the United States as a motion to dismiss by Everett. The court allowed plaintiff an extension of time to respond to the motion so construed.
In her response, plaintiff further clarifies the nature of her claims and relief sought. She asserts that Everett "physically assaulted, continuously discriminated against, repeatedly mocked, and constantly defamed me." (DE 22 at 1). She states she has "filed and sought help through all possible means from the Postal Service via grievance, EAP, reporting to management, reporting to the Raleigh Postmaster, filing EEO, filing accident report, and personally asking Annie Everett to cease in her behavior up and until she grabbed me on April 5, 2014." (Id.). Plaintiff states "nothing has been done about her erratic and abusive behavior by the Postal Service, " and plaintiff provides detailed excerpts of Postal Service rules, regulations, and publications that plaintiff asserts Everett violated. Among the rules allegedly violated are those pertaining to "Discrimination, " "Violent and/or Threatening Behavior, " "Hostile Environment Harassment, " "Workplace Harassment, " and "unwelcome conduct' under Title VII."
After listing these rules, plaintiff reiterates that "NOTHING has been done by Postal Management to remedy this... [Everett] has created a hostile work environment and made my work life during the past year unbearable. It is shameful that they allow such behavior to persist!!!" (DE 22 at 11). Plaintiff requests that Everett "be reprimanded for her behavior" and to be "admonished for this criminal behavior." (Id.). She seeks a restraining order to ensure that Everett have no contact with plaintiff and to "never again act in a supervisory role over [plaintiff]." (Id.).
Plaintiff states she has incurred medical and travel expenses as a result of Everett's conduct. In terms of relief, she seeks restoration of "leave status, " as well as "work hours and "NWDs restored to what they were when [plaintiff] was working at Avent Ferry." (Id.) She seeks to be placed at a work location of her choosing. Plaintiff also seeks ...