United States District Court, E.D. North Carolina, Western Division
SONIA I. WRIGLESWORTH, Plaintiff,
ROBERT M. SPEER, Secretary, U.S. Department of the Army, Defendants.
CDEVERIH Chief United States District Judge
24, 2017, Sonia I. Wriglesworth ("Wriglesworth" or
"plaintiff") filed a pro se employment
discrimination complaint against Robert M. Speer, the
Secretary of the Army ("Speer" or
"defendant") [D.E. 1]. On November 8, 2017, Speer
moved to dismiss Wriglesworth's complaint for lack of
subject-matter jurisdiction and failure to state a claim
[D.E. 12] and filed a memorandum in support [D.E. 13]. On
January 8, 2018, Wriglesworth responded in opposition [D.E.
17]. As explained below, the court grants Speer's motion
is a familiar litigant On June 28, 2017, this court dismissed
Wriglesworth's complaint against Secretary of the Army,
Eric Fanning, which contained nearly identical allegations to
the current complaint See Wriglesworth v Fanning No.
5:16-CV-686-D, 2017 WL 2819771, at *2-3 (E.D. N.C. June 28,
2017) (unpublished). Wriglesworth is a former employee of the
Department of the Army ("the Army"). See
Compl. [D.E. 1] ¶ 5. On April 4, 2016, Wriglesworth
filed an Equal Employment Opportunity ("EEO")
complaint against the Army and alleged retaliation for
earlier EEO complaints. See Id. ¶¶ 6-7:
[D.E. 1-1]. The alleged retaliation included procedural
irregularities in investigating and processing her earlier
EEO complaints. See[D.E. 1-1]. On April 12, 2016, the Army
rejected Wriglesworth's EEO complaint. See Compl. ¶
14; [D.E. 1-2]. On May 6, 2016, Wriglesworth appealed the
Army's dismissal to the Equal Employment Opportunity
Commission ("EEOC"). See Compl. ¶¶ 15-16;
[D.E. 1-3, 1-4]. On July 28, 2016, the EEOC affirmed the
Army's dismissal of the EEO complaint. See Compl. ¶
18; [D.E. 1-6]. On August 29, 2016, Wriglesworth asked the
EEOC to reconsider. See Compl. ¶ 19; [D.E. 1-7]. On
February 24, 2017, the EEOC denied reconsideration. See
Compl. ¶ 20; [D.E. 1-8].
24, 2017, Wriglesworth sued Speer [D.E. 1]. Wriglesworth
alleges that Colonel Edye Moran, Timothy Johnson, and Major
General Luis Visot gave untruthful testimony at a U.S. Merit
Systems Protection Board hearing, and did so in retaliation
for Wriglesworth's EEO complaints. See Compl.
¶¶ 7-13. The complaint seeks judicial review of all
issues in [the EEOC] discrimination complaint" and cites
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e to 2000e-17 ('Title VII").
See Compl. ¶¶ 2, 22.
motion to dismiss under Rule 12(b)(6) tests a complaint's
legal and factual sufficiency. See Ashcroft v
.Iqbal, 556 U.S. 662, 677-80, 684 (2009); Bell Atl
Corp. v. Twombly, 550 U.S. 544, 554-63 (2007);
Giarratano v. Johnson, 521 F.3d298, 302 (4th Cir.
2008). To withstand a Rule 12(b)(6) motion, a pleading
"must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face." Iqbal. 556 U.S. at 678 (quotation
omitted); see Twombly, 550 U.S. at 570;
Giarratano. 521 F.3d at 302. In considering the
motion, the court must construe the facts and reasonable
inferences "in the light most favorable to the
[nonmoving party]." Massey v. Ojaniit, 759 F.3d
343, 347, 352-53 (4th Cir. 2014); see Clatterbuck v. City
of Charlottesville. 708 F.3d 549, 557 (4th Cir. 2013),
abrogated on other grounds by Reed v.
Town of Gilbert. 135 S.Ct. 2218 (2015). A court need not
accept as true a complaint's legal conclusions,
"unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3d at 302
(quotation omitted); see Iqbal. 556 U.S. at 678-79.
Rather, a plaintiffs allegations must "nudge[ ] [her]
claims, " Twombly, 550 U.S. at 570, beyond the
realm of "mere possibility" into
"plausibility." Iqbal, 556 U.S. at 678-79.
"[N]aked assertions of wrongdoing, " devoid of
"factual enhancement, " cannot "cross the line
between possibility and plausibility of entitlement to
relief." Francis v. Giacomelli, 588 F.3d
186.193 (4th Cir. 2009) (quotations omitted). A plaintiff
armed with nothing more than "labels and conclusions,
" or "a formulaic recitation of the elements of a
cause of action, " cannot proceed into the litigation
process. Twombly, 550 U.S. at 555; see
Francis. 588 F.3d at 193.
legally sufficient complaint must meet the standards of
Federal Rule of Civil Procedure 8. See Francis. 588
F.3d at 192. Under Rule 8(a)(2), a complaint must contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). Rule 8(a)(2) exists to ensure that defendants have
adequate notice of the nature of the claims against them.
See, e.g. Francis, 588 F.3d at 192.
standard used to evaluate the sufficiency of a pleading is
flexible, "and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus. 551 U.S. 89, 94 (2007) (per curiam) (quotation
omitted). Erickson. however, does not
"undermine [the] requirement that a pleading contain
'more than labels and conclusions.'"
Giarratano, 521 F.3d at 304 n.5 (quoting
Twombly. 550 U.S. at 555); see Iqbal, 556
U.S. at 677-83; Coleman v. Md. Ct. of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
aff'd. 566 U.S. 30 (2012); Nemet Chevrolet
Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250, 255-56
(4th Cir. 2009); Francis. 588 F.3d at 193. Although
a court must liberally construe a pro se plaintiffs
allegations, it "cannot ignore a clear failure to allege
facts" that set forth a cognizable claim. Johnson v
BAC Home Loans Servicing. LP, 867 F.Supp.2d 766, 776
(E.D. N.C. 2011); see Giarratano, 521 F.3d at 304
n.5. "The 'special judicial solicitude' with
which a district court should view . . . pro se complaints
does not transform the court into an advocate. Only those
questions which are squarely presented to a court may
properly be addressed." Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990). Every
party___por se or otherwise-must comply with the Federal
Rules of Civil Procedure. See Iqbal, 556 U.S. at
678; Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S.
147, 152 (1984) (per curiam).
evaluating a motion to dismiss, a court considers the
pleadings and any materials "attached or incorporated
into the complaint" E.I. du Pont de Nemours &
Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.
2011); see Fed. R Civ. P. 10(c); Thompson v. Greene,
427 F.3d 263, 268 (4th Cir. 2005). A court also may take
judicial notice of public records without converting the
motion to dismiss into a motion for summary judgment.
See, e.g., Fed.R.Evid. 201(d); Tellabs.
Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308,
322 (2007); Philips v. Pitt Cty. Mem'l Hosp.,
572 F.3d 176, 180 (4th Cir. 2009).
apparently brings her claim under 42 U.S.C. §
2000e-16(c), which allows an employee who has filed an EEO
complaint "if aggrieved by the final disposition of his
complaint ... [to] file a civil action as provided in section
2000e-5 of this title, in which civil action the head of the
department... shall be the defendant." 42 U.S.C. §
2000e-16(c). Wriglesworth, however, merely alleges "that
the EEOC erred by affirming the [Army's] final decision
of dismissal and by denying reconsideration[, ]" and
that three witnesses perjured themselves at a Merit Systems
Protection Board hearing in retaliation for her EEO
complaints. See Compl.¶¶8-13, 21. Even if
Wriglesworth could bring a claim against the Army based on
the EEOC's alleged errors, she has not plausibly alleged
that the EEOC erred or that the Army caused the EEOC to err.
extent Wriglesworth attacks how the Army processed her EEOC
complaint, "Title VII does not provide an implied cause
of action permitting a plaintiff to challenge procedural
deficiencies in an agency's handling of an EEO
complaint... [W]hen there have been procedural irregularities
in [a federal employer's] handling of an employee's
EEO complaint, the employee does not have a right under Title
VII to file a separate procedural claim, but must seek
redress for the alleged discrimination by filing a
substantive claim to be adjudicated de novo in the district
court" Nielsen v. Hagel, 666 Fed.Appx. 225, 232
(4th Cir. 2016) (unpublished) (citations omitted); see
Jordan v. Summers 205 F.3d 337, 342 (7th Cir. 2000).
Thus, Wriglesworth fails to state a claim.
extent Wriglesworth seeks to pursue a retaliation claim
against the Army under Title VII, she has failed to state a
claim upon which relief may be granted. To establish a
retaliation claim, a plaintiff must prove that (1) she
engaged in a protected activity under Title VII, (2) her
employer took action against her that a reasonable employee
would find materially adverse, and (3) her employer took the
adverse action because of the protected activity. See
Burlington N. & Santa FeRv. Co. v. White, 548 U.S.
53, 67-70 (2006); DeMasters v. Carilion Clinic, 796
F.3d 409, 416 (4th Cir. 2015); Boyer-Libero v.
Fontainbleau Cnrp., 786 F.3d 264, 281 (4th Cir. 2015)
(en banc); Balas v. Huntington Inealls Indus., Inc.,
711 F.3d 401, 410 (4th Cir. 2013). "Retaliation claims.
. . require the employee to show that retaliation was a
but-for cause of a challenged adverse employment
action." Guessous v. Fairview Prop. Inv., LLC,
828 F.3d 208, 217 (4th Cir. 2016) (quotation and citation
omitted); see Huckelba v. Deering, No.
5:16-CV-247-D, 2016 WL 6082032, *3 (E.D. N.C. Oct. 17, 2016)
(unpublished). "Naked allegations of a causal connection
between plaintiffs protected activity and the alleged
retaliation do not state a plausible Title VII claim."
Huckelba, 2016 WL 6082032 at *3.
complaint alleges that three Army employees gave false
testimony during a Merit Systems Protection Board hearing in
retaliation for Wriglesworth's prior EEO complaints.
See Compl. ¶¶ 8-13. The complaint,
however, contains no facts supporting the allegation that the
testimony was false or that Wriglesworth's EEO complaints
were the but-for cause of the allegedly false testimony.