United States District Court, M.D. North Carolina
July 28, 2015
WILLIE STEWART, Plaintiff,
JEH JOHNSON, Secretary, U.S. Department of Homeland Security, Defendant
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 true, to 'state a claim to relief that is
plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). Generally, a district court may not go beyond
the complaint without converting it to a motion for summary
judgment. See E.I. du Pont de Nemours and Co. v.
Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
However, " a court may consider official public records,
documents central to plaintiff's claim, and documents
sufficiently referred to in the complaint so long as the
authenticity of these documents is not disputed."
Witthohn v. Fed. Ins. Co., 164 F. App'x. 395,
396 (4th Cir. 2006) (per curiam); Phillips v. LCI
Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)
(noting that " a court may consider [the document
outside of the complaint] in determining whether to dismiss
the complaint because it was integral to and explicitly
relied on in the complaint and because the plaintiffs do not
challenge its authenticity" ); see also
Gasner v. Cty. of Dinwiddie, 162 F.R.D. 280, 282
(E.D. Va. 1995) (" [W]hen a plaintiff fails to introduce
a pertinent document as part of his complaint, the defendant
may attach the document to a motion to dismiss the complaint
and the Court may consider the same without converting the
motion to one for summary judgment." ). Although the
court is to take the facts in the light most favorable to the
plaintiff, the court " need not accept the legal
conclusions drawn from the facts," " unwarranted
inferences, unreasonable conclusions, or arguments,"
E. Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000), or
allegations that are contradicted by documents properly
designated as exhibits, Veney v. Wyche, 293 F.3d
726, 730 (4th Cir. 2002).
Court notes that both Mr. Stewart and DHS have attached
documents to their briefing related to the procedural
background of Mr. Stewart's claims in the administrative
process. In particular, DHS has attached (1) the May 17,
2013, Final Agency Decision (ECF No. 6-1); (2) the May 22,
2013, email DHS sent to Mr. Stewart and his attorney that
contained the May 17, 2013, Final Agency Decision (ECF No.
6-2); (3) the June 4, 2013, Decision on a Petition for
Clarification (ECF No. 6-3); (4) the June 28, 2013, letter
from DHS containing the May 17, 2013, decision that DHS
previously transmitted to Mr. Stewart and his attorney (ECF
No. 6-4); and (5) the January 4, 2012, letter from OFO
containing the November 14, 2011, decision that OFO reissued
due to a clerical error (ECF No. 12-1). Mr. Stewart has
attached (1) email correspondence between his attorney and
TSA regarding OFO's issuance of the January 4, 2012,
decision (ECF No. 11-1); (2) TSA's Petition for
Clarification of Remedial Order (ECF No. 11-2); and (3)
OFO's November 14, 2011, decision finding discrimination
(ECF No. 11-3).
Stewart's exhibit containing email correspondence (ECF
No. 11-1) appears related to his argument on equitable
tolling of the 90-day window as discussed below. Similarly,
DHS's email exhibit containing the May 17, 2013, Final
Agency Decision referenced in the Complaint is related to
whether Mr. Stewart timely filed this action. ( See
ECF No. 6-2). These exhibits are central to Mr. Stewart's
Title VII claims since notice of a final agency decision
starts the 90-day window. See Nguyen v. Inova
Alexandria Hosp., No. 98-2215, 1999 WL 556446, at *2, *3
(4th Cir. July 30, 1999). Because neither party has objected
to these exhibits or disputed their authenticity, this Court
may consider them along with the other exhibits referenced in
the Complaint without converting the motion to dismiss into a
motion for summary judgment.
Section 1981 Claims
first moves to dismiss Mr. Stewart's first and second
causes of action on the grounds that federal employees cannot
bring an action under Section 1981 of the Civil Rights Act of
1866. Mr. Stewart concedes that the discrimination claim in
his first cause of action cannot be brought under Section
1981; however, he argues that the retaliation claim asserted
in his second cause of action can proceed because Section
1981 " is silent on the issue of non-discriminatory
retaliation." (ECF No. 11 at 5-6.) Mr. Stewart does not
cite any cases to support his argument.
to Mr. Stewart's argument, it is well established that
" Congress made Title VII the exclusive remedy
for federal employment discrimination and retaliation claims,
preempting Section 1981 and other remedies. "
Olatunji v. District of Columbia, 958 F.Supp.2d 27,
32 (D.D.C. 2013) (emphasis added) (citing Brown v. Gen.
Servs. Admin., 425 U.S. 820, 828-29, 96 S.Ct. 1961, 48
L.Ed.2d 402 (1976)); see Middlebrooks v.
Leavitt, 525 F.3d 341, 349 (4th Cir. 2008) (explaining
that Section 1981 of the Civil Rights Act of 1886 does not
" provide a remedy against federal officials" ).
Accordingly, the Court dismisses Mr. Stewart's first and
second causes of action asserted under Section 1981.
Title VII Claims
also moves to dismiss the Title VII claims in Mr.
Stewart's third and fourth causes of action, contending
that Mr. Stewart failed to file this lawsuit within 90 days
of receipt of the Final Agency Decision.
VII provides that " [w]ithin 90 days of receipt of
notice of final action taken by a department, agency, . . .
or by the Equal Employment Opportunity Commission . . . an
employee . . . may file a civil action." 42 U.S.C.
§ 2000e-16(c). " The failure to file a complaint in
the district court within ninety days of the issuance of a
right-to-sue notice is not a jurisdictional defect but rather
a condition precedent appropriately raised as an affirmative
defense." Makabin v. G4S Secure Sols. (USA),
Inc., No. 3:10-CV-00441-FDW-DCK, 2011 WL 900155, at *5
(W.D.N.C. Mar. 11, 2011). Ordinarily, an affirmative defense,
such as a statute of limitations defense, cannot be raised in
a Rule 12(b)(6) motion. Darden v. Cardinal Travel
Ctr., 493 F.Supp.2d 773, 775 (W.D. Va. 2007) ("
Typically, affirmative defenses, such as a limitations bar,
may not be raised in a Rule 12(b)(6) motion because it is
intended merely to test the legal adequacy of the
complaint." (citing Brooks v. City of
Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996))).
" However, a defense of the statute of limitations may
be raised in a Rule 12(b)(6) motion where that defense
appears clearly on the face of the complaint."
Id. (citing Richmond, Fredericksburg & Potomac
R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)).
Although the Fourth Circuit has not decided which party bears
the burden of establishing timeliness in Title VII cases,
courts within the Fourth Circuit have held that when a
defendant challenges the timeliness of a Title VII action,
the burden is on the plaintiff to demonstrate that his suit
is timely. See Darden, 493 F.Supp.2d at
776; see, e.g., Cepada v. Bd. of Educ. of Balt.
Cty, No. WDQ-10-0537, 2010 WL 3824221, at *3 (D. Md.
Sept. 27, 2010); Ashby v. Eckerd Pharmacy/Brooks
Pharmacy, LLC, No. 3:05cv475, 2007 WL 3224761, at *1
(W.D.N.C. Oct. 29, 2007); see also Green v.
Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002).
it is undisputed that Mr. Stewart and his attorney received
notice of DHS's Final Agency Decision on May 22, 2013,
via email. Within fifteen minutes,
Mr. Stewart's attorney acknowledged such by responding
via email to DHS with, " We will appeal this decision as
soon as possible." (ECF No. 6-2.) In addition, it is
undisputed that Mr. Stewart filed this action on September
27, 2013, 128 days after receiving the Final Agency Decision
of DHS by email on May 22, 2013. However, Mr. Stewart claims
that the 90 days started to run on June 28, 2013, when his
attorney received via certified mail a copy of the May 17,
2013, Final Agency Decision. (ECF No. 11 at 8.) The Fourth
Circuit has rejected a blanket rule that " actual
receipt" of the final agency decision starts the 90-day
clock, as argued by Mr. Stewart. Nguyen, 1999 WL
556446, at *3. Rather, " delivery of a notice
of right to sue trigger[s] the limitations period."
Id. (emphasis added). The notice requirement will
often be satisfied by actual receipt, if known. See
id. " If the date is unknown, however, it is
presumed that service by regular mail is received within
three days pursuant to Rule 6(e) of the Federal Rules."
Id. Final agency decisions transmitted via email can
satisfy the notice requirement. See Ward v.
Comm'r of Soc. Sec., No. WDQ-11-1004, 2012 WL
122412, at *4 (D. Md. Jan. 12, 2012) (holding plaintiff's
lawsuit untimely when plaintiff failed to sue within 90 days
after receiving the final agency decision by email).
fact that the May 17, 2013, decision was received by Mr.
Stewart's attorney through the mail on June 28, 2013,
does not change the date the 90-day window started--May 22,
2013--the date that both Mr. Stewart and his attorney
received notice of the Final Agency Decision via
email. The Court agrees with DHS that the
June 28, 2013, date asserted by Mr. Stewart is clearly not
relevant to the notice issue in this case. Under no
circumstance does this Court conclude based on the record
that the 90-day window began to run on June 28, 2013.
arguable that OFO's June 4, 2013, decision on TSA's
Petition for Clarification was the final agency action for
purposes of the commencement of the 90-day window. The
certificate of mailing at the end of the decision states,
" I certify that this decision was mailed to the
following recipients on the date below." (ECF No. 6-3 at
7.) Mr. Stewart is listed as one of the recipients, although
his attorney is not listed. ( Id. ) The date noted
on the decision is June 4, 2013. ( Id. ) Although
Mr. Stewart's Complaint states that OFO issued this
decision on June 4, 2013, the Complaint does not provide any
details related to the date Mr. Stewart received notice of
this decision. Nor does Mr. Stewart make any argument
whether OFO's June 4, 2013, decision should be considered
a final agency action that would trigger the 90-day window.
Because Mr. Stewart has offered no facts that would preclude
application of the three-day rule to the June 4, 2013,
decision, the Court must presume the decision was delivered
three days later, giving Mr. Stewart notice on June 7, 2013.
This would require that he file suit by September 5, 2013.
Thus, this action would still be untimely.
recognizing the untimeliness of this action, Mr. Stewart
argues that DHS is not before the Court with clean hands.
(ECF No. 11 at 7.) Mr. Stewart appears to advance an
equitable tolling argument by claiming that DHS wrongfully
delayed the administrative process in January and February of
2012. ( Id. ) Although equitable tolling is an
appropriate remedy in cases where a claimant " has been
induced or tricked by his adversary's misconduct into
allowing the filing deadline to pass," Gayle v.
United Parcel Serv., Inc., 401 F.3d 222, 226 (4th Cir.
2005) (quoting Irwin v. Dep't of Veterans
Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435
(1990)), the Court is unable to grasp how events that
occurred in early 2012 had any impact on Mr. Stewart's
ability to file a timely lawsuit in 2013. Nor has Mr. Stewart
shown that " extraordinary circumstances beyond [his]
control made it impossible to file the claims on time."
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000). The record shows that Mr. Stewart
" failed to exercise due diligence in preserving his
legal rights." Chao v. Va. Dep't of
Transp., 291 F.3d 276, 283 (4th Cir. 2002). "
Equitable tolling is not appropriate" in such
circumstances. Id. Accordingly, the Court concludes
that Mr. Stewart has failed to bring these claims within 90
days of notice of final agency action as required by Title
in his briefing, Mr. Stewart suggests that his Complaint
includes a claim for constructive discharge that is not
subject to dismissal. ( See ECF No. 11 at 9 ("
The elements of constructive discharge were alleged in the
complaint as is the current state of the Fourth Circuit
Opinion." ).) " It is well-established that parties
cannot amend their complaints through briefing . . . ."
S. Walk at Broadlands Homeowner's Ass'n, Inc. v.
OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir.
2013). For that reason alone, Mr. Stewart has failed to
allege constructive discharge.
if, for the sake of argument, Mr. Stewart's Complaint can
be read to include a claim for constructive discharge under
Title VII, that claim, like the rest of his Title VII claims,
is time-barred for the reasons outlined above. Moreover, Mr.
Stewart did not raise a constructive discharge claim during
the administrative process, ( see ECF No. 6-3 at 3),
precluding review in this Court for lack of federal subject
matter jurisdiction. Jones v. Calvert Grp., Ltd.,
551 F.3d 297, 300 (4th Cir. 2009) (" [A] failure by the
plaintiff to exhaust administrative remedies concerning a
Title VII claim deprives the federal courts of subject matter
jurisdiction over the claim." ).
Because the Court concludes that it must dismiss all four of
Mr. Stewart's claims for the reasons outlined herein, the
Court need not reach DHS's argument that Mr. Stewart has
failed to plead a prima facie case of discrimination based on
race, retaliation, and constructive discharge.
THEREFORE ORDERED that Defendant's Motion to Dismiss (ECF
No. 5) is GRANTED and that Plaintiff's claims are
DISMISSED WITH PREJUDICE. A judgment dismissing this action
will be entered contemporaneously with this Order.
In the Complaint, Mr. Stewart named Janet
Napolitano as the Defendant in this case. Jeh Johnson has
since replaced Ms. Napolitano as Secretary of DHS. Under Rule
25(d) of the Federal Rules of Civil Procedure, Mr. Johnson is
automatically substituted as the defendant in this
At other places in his Complaint, Mr.
Stewart alleges that he was demoted. ( See ECF No. 1
OFO reissued this decision on January 4,
2012, " because of a clerical error in the original
decision." (ECF No. 1 ¶ 26.)
The email from DHS is addressed to Mr.
Stewart, but it does not show the email's
recipients. ( See ECF No. 6-2.) However, Mr.
Stewart's attorney responded to the email and copied Mr.
On May 21, 2013, the Final Agency Decision
of DHS was mailed to Mr. Stewart's attorney and was
returned to DHS as " insufficient address, unable to
forward" on June 10, 2013. (ECF No. 6-4.) After
receiving the correct address from TSA, DHS resent the Final
Agency Decision via certified mail on June 28, 2013. (
Id. ) At all times relevant here, DHS is referencing
the Final Agency Decision dated May 17, 2013, that it also
sent via email to Mr. Stewart and his attorney on May
Mr. Stewart references the June 28, 2013,
mailing in his Complaint but does not make clear that it was
merely a mailing of the May 17, 2013, Final Agency Decision
that had been previously emailed to him and his attorney on
May 22, 2013. ( See ECF No. 1 ¶ 31.)
Rule 6(e) of the Federal Rules of Civil
Procedure is now Rule 6(d) due to amendment.
Similarly, the Court is not persuaded by
Mr. Stewart's argument that, since the certificate of
service related to the June 28, 2013, mailing of the Final
Agency Decision did not mention notice that the decision had
been emailed to Mr. Stewart and his counsel on May 22,
2013, the Court should only consider the service acknowledged
by mail on June 28, 2013. ( See ECF No. 11 at 8.)
Notice of the final agency action, which Mr. Stewart's
attorney acknowledged on May 22, 2013, via email, is all that
is required to trigger the 90-day window.
In the Complaint, Mr. Stewart states,
" On May 17, 2013, CRCL issued its Final Agency
Decision." (ECF No. 1 ¶ 30.) He then goes on to
state, " On June 28, 2013, the Department of Homeland
Security and through TSA issued a notice of the Final Agency
Action, which was received on July 2, 2013." (
Id. ¶ 31.) The Court rejects Mr. Stewart's
attempt at characterizing the June 28, 2013, notice received
by mail as something different than what was received on May
22, 2013, via email. Mr. Stewart's claims would likewise
be untimely if his attorney received the June 28, 2013,
decision on July 2, 2013.
Other circumstances where equitable
tolling may be appropriate include when " (1) the
claimant received inadequate notice, (2) a motion for
appointment of counsel was pending, [and] (3) the court led
the plaintiff to believe that he had completed all the
necessary requirements." Thompson v. Potter,
No. 1:03CV00593, 2004 WL 725629, at *1 (M.D.N.C. Mar. 31,
2004). None of these circumstances are present in this case
to justify equitable tolling of the 90-day window.