United States District Court, W.D. North Carolina, Asheville Division
DIANE J. MUTTER, Plaintiff,
MELISSA BRAGG, DAVID PRZESTRZELSKI, PATRICIA FULLER, and ROBERT A. McDONALD, Defendants.
MEMORANDUM AND RECOMMENDATION
L. Howell, United States Magistrate Judge
matter is before the Court on Defendants' Motion to
Dismiss (# 17) pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). The issues have been fully briefed,
and the matter is now ripe for ruling. For the reasons
addressed below, this Court will recommend that
Defendants' Motion to Dismiss be GRANTED.
Factual and Procedural Background
September 16, 2016, Plaintiff, proceeding pro se,
filed this action using a Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq. form
complaint (# 1). On October 24, 2016, Plaintiff filed an
amended complaint (# 4). In Plaintiff's amended
complaint, she alleges the following: Plaintiff was employed
by Defendants at Charles George Veterans Affairs
(“VA”) Medical Center, which is located at 1100
Tunnel Road in Asheville, North Carolina. Am. Compl. (# 4) at
2. The discriminatory acts that serve as the basis for
Plaintiff's allegations occurred around September 27,
2004. Id. The discriminatory acts against Plaintiff
include the following: failure to employ her; termination of
her employment; failure to comply with the September 27,
2004, settlement agreement; and continuing to provide
negative, incorrect information regarding prior employment
until at least June, 2016. Id. at 4. As a result of
Defendants' discriminatory conduct, Plaintiff has
suffered mental anguish, financial ruin, violation of
unalienable rights, and post-traumatic stress disorder
(“PTSD”). Id. at 5-6. Plaintiff seeks
“compensatory relief” from September 27, 2004 to
the present and compensation for mental anguish, pain and
suffering, PTSD, and case-related costs. Id. at 8.
filed charges with the Equal Employment Opportunity
Commission (“EEOC”) on or about January 12, 2015.
Id. at 4. Plaintiff received a “Notice of
Right to Sue” from the EEOC on June 16, 2016.
February 2, 2017, Defendants filed a Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment (#12), in which
they moved for an order dismissing Plaintiff's case in
its entirety for two reasons. First, Defendants argued that
the complaint should be dismissed, pursuant to Federal Rule
of Civil Procedure 12(b)(1), because the Court lacked
subject-matter jurisdiction over Plaintiff's breach of
settlement agreement claim. Second, Defendants argued that
Plaintiff's breach of settlement agreement claim was time
barred and should be dismissed pursuant to Federal Rules of
Civil Procedure 12(b)(6) and 56. Moreover, to the extent that
any cause of action survived dismissal, Defendants argued
that it should proceed solely against “Robert D.
Snyder, Acting Secretary of the Department of Veteran
Affairs, ” and any remaining Defendants should be
dismissed because the Secretary of the VA, in his official
capacity, is the only proper defendant in the action.
March 13, 2017, the Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment was denied without prejudice to
renew. Defendants were advised that this Court will no longer
consider “dual” motions under both Federal Rules
of Civil Procedure 12 and 56, or a motion to dismiss that
moves in the alternative for dismissal under Federal Rule of
Civil Procedure 56.
March 23, 2017, Defendants filed the instant Motion to
Dismiss (# 17). On April 7, 2017, Plaintiff filed a letter to
the presiding District Judge (# 18), which the undersigned
construes as an Opposition to Defendants' Motion to
Dismiss. On April 10, 2017, Defendants filed a Notice of
intent not to file a reply (#19).
motion to dismiss based on Federal Rule of Civil Procedure
12(b)(1) addresses whether the court has subject-matter
jurisdiction to hear the dispute. See Fed.R.Civ.P.
12(b)(1). Where a defendant contends that a complaint fails
to allege facts upon which the court can base subject matter
jurisdiction, the court, like ruling on a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), assumes
as true the factual allegations in the complaint. Adams
v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If,
however, the defendant contends that the jurisdictional
allegations contained in the complaint are false, the court
may go beyond the allegations of the complaint and conduct an
evidentiary hearing in order to determine if there are facts
to support the court's exercise of jurisdiction over the
dispute. Id. The burden of establishing subject
matter jurisdiction on a motion to dismiss rests with the
party asserting jurisdiction. Id.; Williams v.
United States, 50 F.3d 299, 304 (4th Cir. 1995).
central issue for resolving a Rule 12(b)(6) motion is whether
the complaint states a plausible claim for relief. See
Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir.
2009). In considering a defendant's motion, the court
accepts the allegations in the complaint as true and
construes them in the light most favorable to plaintiff.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588
F.3d at 192. Although a court accepts well-pled facts as
true, it is not required to accept “legal conclusions,
elements of a cause of action, and bare assertions devoid of
further factual enhancement.”
Consumeraffairs.com, 591 F.3d at 255; see
Giacomelli, 588 F.3d at 192.
claims need not contain “detailed factual allegations,
” but must contain sufficient factual allegations to
suggest the required elements of a cause of action. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see Consumeraffairs.com, 591 F.3d at 256. “[A]
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Nor
will mere labels and legal conclusions suffice. Id.
Federal Rule of Civil Procedure 8 ...