United States District Court, E.D. North Carolina, Western Division
SHELIA Y. CRUTHIRDS, Plaintiff,
RAYMOND P. LACEY, et al., Defendants.
Earl Britt Senior U.S. District Judge.
matter is before the court on the 16 November 2016 motion to
dismiss filed by defendants Raymond P. Lacey, Brandi Stewart,
Kathy Shearer, Sondra McMillan, Karen Miller, Child Youth
School Services/Directorate Family, Morale, Welfare, and
Recreation, and John M. McHugh, Secretary of the Department
of the Army. (DE # 45.) Plaintiff has filed three responses
in opposition to defendants' motion. (DE ## 49, 50, 51.)
Defendants did not file a reply brief, and the time within
which to do so has expired. This matter is therefore ripe for
case arises from plaintiff's employment from 2010 to 2013
by the Directorate of Family, Morale, Welfare and Recreation
(“DFMWR”) in a number of positions in the
Department of Child and Youth School Services
(“CYSS”) in Fort Bragg, North Carolina. (Compl.,
DE # 10, ¶¶ 10-11, 37-38.) Plaintiff claims that,
at all times relevant to this lawsuit, she was a
Non-Appropriated Fund (“NAF”) employee.
(Id. ¶ 53.)
began her employment with CYSS in August 2010 as a program
assistant. (Id. ¶ 10.) In June 2011, plaintiff
was promoted to a Supervisory Program Specialist
(“SPS”) at Wonderful World for Kids School Age
Program. (Id. ¶ 12.) A few months after her
promotion, plaintiff filed an age discrimination complaint
which was resolved by a negotiated settlement agreement.
(Id. ¶ 13.) Pursuant to the settlement
agreement, plaintiff was reassigned to work as SPS at the
Cook Child Development Center (“Cook CDC”), where
she worked under the direction of Kathy Shearer.
(Id. ¶ 14.)
2012, plaintiff wrote an email to her first-level supervisor,
Jasmine Edwards, regarding observations of discriminatory
practices by Shearer. (Id. ¶ 15.) The following
month, in June 2012, Shearer proposed a three-day suspension
of plaintiff for knowingly making false and malicious
statements against her. (Id. ¶¶ 17-18.)
The proposed suspension was upheld by plaintiff's
second-level supervisor, Sandra McMillan. (Id.
2012, plaintiff began seeking workers' compensation
benefits with the Office of Workers' Compensation
Programs (“OWCP”). (Id. ¶ 20.) She
submitted a claim for Acute Anxiety/Depression, which she
claimed was related to non-violent traumatic events in the
workplace. (Id. ¶¶ 20-21.) Her claim for
benefits was controverted by the Department of the Army.
(Id. ¶ 20.) Plaintiff subsequently requested
reasonable accommodations away from the Cook CDC, and to step
down from her position as SPS. (Id. ¶ 22.) When
she did not receive a response to either of her requests,
plaintiff obtained legal counsel to assist with her
workers' compensation claim. (Id. ¶ 23.)
November 2012, plaintiff was diagnosed with post-traumatic
stress disorder and advised by her physician to take an
extended period of eight months of sick leave from work.
(Id. ¶ 25.) Thereafter, plaintiff filed and
submitted a leave form requesting to be out of work from 8
January 2013 through 20 September 2013. (Id. ¶
26.) At the time she submitted the request, plaintiff had
already been on approved sick leave. (Id.) On 12
December 2012, Shearer denied the leave request on the basis
that plaintiff had exhausted her 12-week leave entitlement
under the Family and Medical Leave Act (“FMLA”).
(Id. ¶ 28.) Plaintiff subsequently resubmitted
a leave form and asked to be placed on Leave Without Pay
Status (“LWOP”). (Id. ¶ 29.) On 9
January 2013, Shearer informed plaintiff via letter that her
request for LWOP had not been approved. (Id. ¶
January 2013, Brandi Stewart notified Fort Bragg officials
that she had been warned by plaintiff and that she and
members of the CYSS program had been inundated with emails
from plaintiff. (Id. ¶ 32.) Plaintiff's
attorney informed plaintiff that she would be barred from
Fort Bragg because her emails were perceived as threatening,
and withdrew his representation on 24 January 2013.
(Id. ¶ 33.) That same day, Colonel Jeffrey M.
Sanborn barred plaintiff from Fort Bragg due to threats and
harassment of members of the CYSS program. (Id.
¶ 34.) Due to having been permanently banned from Fort
Bragg, plaintiff was issued a Notice of Proposed Separation
on 15 February 2013. (Id. ¶ 37.) On 12 March
2013, DFMWR Director Raymond Lacey issued plaintiff a notice
of decision to remove her from federal service. (Id.
filed the present lawsuit on 28 April 2015. (DE # 10.) In her
complaint, plaintiff alleges that “by barring her from
the installation and terminating [her] Employment, CYSS/DFMWR
and the Department of the Army violated [FMLA] by denying her
FMLA Leave and interfering with her ability to take leave
protected by the FMLA.” (Id. ¶ 49.)
Plaintiff also asserts a breach of contract claim, claiming
that her termination violated Army regulations and the
policies set forth for NAF personnel. (Id.
move to dismiss plaintiff's complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure, and for failure to state a claim
upon which relief can be granted pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. (Defs.' Mem., DE #
46, at 2.)
Standard of Review
12(b)(1) authorizes dismissal of a claim for lack of subject
matter jurisdiction. When a defendant challenges subject
matter jurisdiction pursuant to Rule 12(b)(1), the court is
“to regard the pleadings as mere evidence on the issue,
and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir.1999). The plaintiff bears the burden of showing that
subject matter jurisdiction exists on a Rule 12(b)(1) motion.
Williams v. United States, 50 F.3d 299, 304 (4th
Cir. 1995). The court must grant the motion “only if
the jurisdictional facts are not in ...