United States District Court, E.D. North Carolina, Western Division
SHELIA Y. CRUTHIRDS, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
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
OF THE CASE
proceeding pro se, initiated this action September
17, 2018. This case, the latest in a series of lawsuits,
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.
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.
OF THE FACTS
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).
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).
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).
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).
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.
Standard of Review
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 ...