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Cruthirds v. Lacey

United States District Court, E.D. North Carolina, Western Division

May 22, 2017

RAYMOND P. LACEY, et al., Defendants.


          W. Earl Britt Senior U.S. District Judge.

         This 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 disposition.

         I. BACKGROUND

         This 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.)

         Plaintiff 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.)

         In May 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. ¶ 19.)

         In July 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.)

         On 28 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. ¶ 30.)

         On 22 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. ¶ 39.)

         Plaintiff 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. ¶¶ 51-56.)

         II. ANALYSIS

         Defendants 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.)

         A. Standard of Review

         Rule 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 ...

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