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Cruthirds v. United States

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

April 11, 2019




         This matter is before the court on defendant's motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) (DE 9). The motion has been fully briefed, and the issues raised are ripe for decision. For the reasons that follow, the court grants defendant's motion.


         Plaintiff, proceeding pro se, initiated this action September 17, 2018. This case, the latest in a series of lawsuits, [1] arises from United States Army barring plaintiff from entering Fort Bragg and Camp McKall, then terminating her employment with the child and youth school services directorate program (“CYSS”). Plaintiff alleges defendant committed several intentional torts under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., discriminated and retaliated in violation of various civil rights statutes, and improperly reported to the Internal Revenue Service (“IRS”) payment arising from a settlement agreement.

         On December 28, 2018, defendant filed the instant motion to dismiss. After briefing in the usual course, see Local Civil Rule 7.1(f), 7.1(g), plaintiff filed two sur-replies in opposition to the motion. Plaintiff relies upon voluminous exhibits, including email correspondence between her and former supervisors; correspondence regarding barring her entry to base and termination; records of proceedings following her termination; declarations by plaintiff and various employees of the Army; settlement agreements between plaintiff and the Army; and correspondence with the Internal Revenue Service (“IRS”) and the Army regarding taxation of her settlement payment.


         On or around August 10, 2010, plaintiff began working for defendant as a non-appropriated fund (“NAF”) employee at the child and youth program at Fort Bragg. (Compl. at 1, 3; 10/7/13 Letter (DE 1-10) at 5; Notice of Termination (DE 1-19) at 3). After approximately ten months, plaintiff was promoted to supervisory program specialist for Wonderful World for Kids (“WWK”). (See 10/7/13 Letter (DE 1-10) at 5). Eight days later, plaintiff emailed Karen Miller (“Miller”), division chief of CYSS, to tell her there were too many children in the program and that the director of WWK, Sakeeta Lewis (“Lewis”), allowed children to go unsupervised. (Compl. at 3, 4; 10/7/13 Letter (DE 1-10) at 5). Following plaintiff's email, her relationship with Lewis and other workers at WWK deteriorated over the course of 2011. (See 10/7/13 Letter (DE 1-10) at 5).

         At the beginning of 2012, Miller reassigned plaintiff to Cook Child Development Center (“CCDC”). (Compl. at 3, 4; 10/7/13 Letter (DE 1-10) at 6). However, plaintiff's relationship with her supervisors at CCDC quickly became contentious. On July 16, 2012, Kathy Shearer (“Shearer”), plaintiff's immediate supervisor, recommended plaintiff be suspended for three days for sending an email on or about May 23, 2012, allegedly making false statements about the director of CCDC. (7/16/12 Memorandum (DE 1-3) at 10).

         Shortly after the recommendation of suspension, plaintiff communicated to Sondra McMillan (“McMillan”), her second line supervisor, that she had been diagnosed with acute anxiety and depression. (Miller Decl. (DE 1-4) at 3). Plaintiff's doctor requested she be placed on medical leave, and plaintiff requested that she be transferred to another facility besides CCDC. (Miller Decl. (DE 1-4) at 3; 10/7/13 Letter (DE 1-10) at 7). Plaintiff also filed a worker's compensation claim, alleging that defendant's employees caused her medical conditions. (10/7/13 Letter (DE 1-10) at 7).

         In mid-January 2013, plaintiff sent threatening emails to her supervisors, stating “you are going to pay for this intentional act that almost caused me to commit suicide . . .” and comparing herself to the shooter in the “Arizona Movie Massacre.” (Miller Decl. (DE 1-4) at 4). On January 31, 2013, Colonel Jeffrey M. Sanborn (“Colonel Sanborn”) banned plaintiff from entering the military reservation at Fort Bragg and Camp McKall effective immediately for making threats and harassing members of CYSS. (1/31/13 Letter (DE 1-15) at 2). The Army terminated plaintiff's employment with CYSS on March 21, 2013. (10/7/13 Letter (DE 1-10) at 8).

         In the wake of her termination, plaintiff prosecuted a raft of EEOC charges alleging discrimination on the basis of race, disability, age, and reprisal. Pursuant to a negotiated global settlement agreement, plaintiff settled all her claims against defendant in 2016 (“2016 Global Settlement”). (See 2016 Global Settlement (DE 1-2) at 2-4). On July 2, 2018, the IRS sent a notice of proposed changes to plaintiff's 2016 tax return, creating a deficiency of $61, 402.00 of taxes, penalties, and interest arising from the lump sum payment made to plaintiff as part of her settlement with the Army. (See Compl. at 2). Plaintiff then instituted this action.


         A. Standard of Review

         A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant raises a “facial challenge[] to standing that do[es] not dispute the jurisdictional facts alleged in the complaint, ” the court accepts “the facts ...

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