United States District Court, M.D. North Carolina
WILLIE STEWART, Plaintiff: BRIAN L. CRAWFORD, LEAD ATTORNEY,
THE LAW OFFICE OF BRIAN L. CRAWFORD, P.A., DURHAM, NC.
DEPARTMENT OF HOMELAND SECURITY, JEH JOHNSON, Defendants:
STEVEN N. BAKER, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE,
OPINION AND ORDER
C. Biggs, United States District Judge.
Willie Stewart (" Mr. Stewart" ) brings this action
against Jeh Johnson, Secretary of the United States
Department of Homeland Security (" DHS"
), alleging employment discrimination
based on race and retaliation in violation of Section 1981 of
the Civil Rights Act of 1866, 42 U.S.C. § 1981 (2012),
and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-16(a). (ECF No. 1 ¶ 1.) Before the Court is
DHS's Motion to Dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (ECF No. 5.) For the
reasons that follow, the Court grants DHS's motion,
dismissing Mr. Stewart's action.
considering a motion to dismiss, the court accepts as true
the allegations in the complaint and views the complaint in
the light most favorable to the plaintiff. Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The
facts viewed in the light most favorable to Mr. Stewart are
as follows: On or about August 3, 2002, Mr. Stewart, an
African-American citizen of Durham, North Carolina, began
working at the Transportation Security Administration ("
TSA" ), an agency within DHS, as a Supervisory
Transportation Security Screener. (ECF No. 1 ¶ ¶
33-34.) In January of 2003, Mr. Stewart applied for an open
position at TSA as a Transportation Security Screening
Manager. ( Id. ¶ 35.) Although Mr. Stewart
thought that he was the best candidate for the manager
position, he was notified by TSA on February 18, 2003, that
he was not selected for the position. ( Id. ¶
¶ 35-36, 40.) " Mr. Stewart was convinced he was
not selected due to his race." ( Id. ¶
36.) He therefore filed a formal complaint on April 9, 2003.
( Id. ¶ 40.) On January 7, 2004, Mr. Stewart
received notice of a proposed demotion because of " lack
of candor."  ( Id. ¶ 16.) Since Mr.
Stewart had never been reprimanded or received any written
notices alleging that he had displayed " lack of
candor," Mr. Stewart was again " convinced he was
demoted due to his race." ( Id. ¶ 37.) Mr.
Stewart resigned his position on or about January 14, 2004,
because " [h]e feared further demotions and further
tarnishing of his work record based solely upon his
race." ( Id. ¶ 38.)
March of 2005, DHS issued its Final Agency Decision on Mr.
Stewart's Complaint, finding that Mr. Stewart had failed
to prove discrimination. ( See id. ¶ ¶ 20,
21.) Mr. Stewart appealed this decision to the Equal
Employment Opportunity Commission's (" EEOC" )
Office of Federal Operations (" OFO" ). (
Id. ¶ 22.) After initially affirming DHS's
decision, OFO reconsidered its decision at Mr. Stewart's
request. ( Id. ¶ ¶ 23-25.) On November 14,
2011, OFO overruled its earlier decision
and found that Mr. Stewart had been discriminated against
based on his race. ( Id. ¶ 25.) OFO ordered
that DHS offer Mr. Stewart the manager position and give him
appropriate back pay ( ECF No. 11-3 at 13) but remanded the
issue of compensatory damages to DHS for further
investigation (ECF No. 1 ¶ 25). On February 14, 2012,
TSA submitted to OFO a Petition for Clarification of
OFO's November 14, 2011, decision. ( Id. ¶
27.) In the petition, TSA argued that Mr. Stewart was not
entitled to reinstatement due to his voluntary resignation
and thus was limited to the promotion, back pay, and benefits
for the period of February 18, 2003, to January 14, 2004. (
See ECF No. 11-2 at 4.)
17, 2013, DHS issued its Final Agency Decision, specifically
related to the issue of compensatory damages. (ECF No. 1
¶ 30; ECF No. 6-1 at 8.) DHS emailed this Final Agency
Decision to Mr. Stewart and his attorney on May 22,
2013. (ECF No. 6-2.) Within fifteen minutes,
Mr. Stewart's attorney responded to the email stating,
" We will appeal this decision as soon as
possible." ( Id. ) On June 4, 2013, OFO issued
its decision arising out of the petition for clarification
filed by TSA related to whether Mr. Stewart was entitled to
reinstatement to the manager position, concluding that Mr.
Stewart was not eligible for reinstatement and limiting his
back pay, benefits, and promotion to the period of February
18, 2003, to January 14, 2004. ( See ECF No. 1
¶ 31; ECF No. 6-3 at 4, 8.)
28, 2013, DHS mailed to Mr. Stewart's attorney its Final
Agency Decision that had previously been emailed to Mr.
Stewart and his attorney on May 22, 2013. (ECF No.
6-4.) Mr. Stewart filed this action on
September 27, 2013, asserting the following causes of action:
(1) discrimination in violation of Section 1981; (2)
retaliation in violation of Section 1981; (3) discrimination
and harassment in violation of Title VII; and (4) retaliation
in violation of Title VII. (ECF No. 1 at 4-6.) DHS moves to
dismiss all four causes of action in Mr. Stewart's
Complaint for failure to state a claim upon which relief can
Rule 12(b)(6) Standard
purpose of a motion made under Rule 12(b)(6) of the Federal
Rules of Civil Procedure " is to test the sufficiency of
a complaint." Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999). " To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as ...