Stewart v. Johnson

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          For WILLIE STEWART, Plaintiff: BRIAN L. CRAWFORD, LEAD ATTORNEY, THE LAW OFFICE OF BRIAN L. CRAWFORD, P.A., DURHAM, NC.

         For DEPARTMENT OF HOMELAND SECURITY, JEH JOHNSON, Defendants: STEVEN N. BAKER, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, GREENSBORO, NC.

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         MEMORANDUM OPINION AND ORDER

         Loretta C. Biggs, United States District Judge.

         Plaintiff Willie Stewart (" Mr. Stewart" ) brings this action against Jeh Johnson, Secretary of the United States Department of Homeland Security (" DHS" ),^[1] 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.

         I. BACKGROUND

         When 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." ^[2] ( 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.)

         In 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

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and found that Mr. Stewart had been discriminated against based on his race.^[3] ( 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.)

         On May 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.^[4] (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.)

         On June 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.^[5] (ECF No. 6-4.)^[6] 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 be granted.

         II. DISCUSSION

         A. Rule 12(b)(6) Standard

         The 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 ...