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Wilbur v. United States

United States District Court, S.D. Alabama, Southern Division

April 6, 2018

JOSEPH WILBUR, JR., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          CORRECTED REPORT AND RECOMMENDATION [1]

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. L.R. 72(a)(2)(S), on Defendant United States of America's Motion to Dismiss and Supporting Memorandum (“motion to dismiss”), (Doc. 25), which was filed on November 3, 2018. Upon consideration of the parties' pleadings, (Docs. 25, 26, 28, 30, & 33), and those arguments presented at the hearing in regard to Defendant's motion to dismiss, (see Docs. 35, 39, & 43), it is RECOMMENDED Defendant's motion to dismiss, (Doc. 25), be granted.

         FACTUAL BACKGROUND

         Plaintiff claims, in November or December 2011, he was employed by the Occupational Safety and Health Administration (“OSHA”) as a compliance officer in the Mobile, Alabama, office. (Doc. 9, at 2). Plaintiff claims that the Area Director (“AD”) for the Mobile, Alabama, office performed crude and sexually obnoxious behavior in his office in front of him. (Doc. 9, at 2). Plaintiff reported the AD's actions to the NCFLL union steward, who informed Plaintiff the AD was attempting to motivate him. (Doc. 9, at 2). Plaintiff claims in January 2012, a new employee with OSHA at its Mobile, Alabama, office was subjected to similar crude and sexually obnoxious behavior by the AD in the copier room. (Doc. 9, at 3). This time, the AD's actions were reported to the Assistant AD (“AAD”), but the AD's actions went unpunished. (Doc. 9, at 3).

         Plaintiff claims, in July 2012, he contacted the Regional Office in regard to a climate survey and spoke to an employee, to whom he disclosed the actions of the AD and his displeasure with those actions. (Doc. 9, at 3). The employee, after a brief nap during the recitation, tried to convince Plaintiff that the AD's actions did not constitute sexual harassment and were a demonstration of the AD's flexibility. (Doc. 9, at 3). The employee, then, walked into the AD's office and closed the door. (Doc. 9, at 3). Later, the employee wrote a report that stated Plaintiff did not witness acts of sexual harassment or lewd behavior by the AD. (Doc. 9, at 3).

         Plaintiff claims, in December 2012, a new, female employee was called to the AD's office and the AD showed the female employee graphic pictures on his computer. (Doc. 9 at 4). The female employee texted Plaintiff a message that stated the AD showed her explicit pictures that made her feel uncomfortable and she needed Plaintiff's help with filing a complaint with the Equal Employment Opportunity Commission (“EEOC”). (Doc. 9., at 4). Plaintiff assisted the female employee with contacting certain people, emailing the Regional Director in Atlanta, Georgia, and sending a copy of the email to their union steward. (Doc. 9, at 4). In the email, Plaintiff stated his disdain for the AD's actions and the culture of the Mobile, Alabama, office. (Doc. 9, at 4). Subsequently, the AD was investigated by the Department of Labor (“DOL”), and the AAD conducted the investigation. (Doc. 9, at 4). The AAD did not find any inappropriate materials on the AD's computer. (Doc. 9, at 4). The female employee was, later, forced to resign because she violated agency policy. (Doc. 9, at 4).

         Plaintiff claims, on January 3, 2013, he sent an email in regard to the code of conduct and stated his disgust with the culture in the Mobile, Alabama, office. (Doc. 9, at 4). He also claims, on February 27, 2013, the AAD warned him not to cause problems in the office and told Plaintiff he could help him assume a management position. (Doc. 9, at 4).

         Plaintiff claims, on March 7, 2013, he was verbally admonished because he did not conduct an inspection. (Doc. 9, at 5). Plaintiff claims, on June 20, 2013, he received an unfavorable mid-year performance evaluation, which he refused to sign. (Doc. 9, at 5-6). Plaintiff claims, on June 4, 2013, he sent a letter to former United States Senator Jeff Sessions in regard to the culture of the office. (Doc. 9, at 6). Plaintiff claims, in July 2013, he sent his resignation letter to the DOL due to a hostile work environment. (Doc. 9, at 6).

         Plaintiff claims, on February 5, 2015, notice was sent to him that the United States Citizenship and Immigration Services (“USCIS”) rescinded its offer to him for a position as a Safety and Health Manager; however, he was on military deployment when the notice was originally sent to him and did not receive the notice until September 2015. (Doc. 9, at 6; Doc. 42, at 2). In the notice, USCIS informed Plaintiff it rescinded the offer because of a DOL investigative report, in which was listed acts of misconduct by him and was closed on August 27, 2013. (Doc. 1-5, at 2; Doc. 9, at 6-7). On October 19, 2016, Plaintiff mailed an administrative claim under the Federal Torts Claim Act (“FTCA”) to the DOL Tort Claims Unit, which received the claim on October 21, 2016. (Doc. 9, at 8).

         PROCEDURAL BACKGROUND

         Pro se Plaintiff filed his Complaint in this Court on June 19, 2017, in which he brought claims, pursuant to the FTCA, of abuse of process, negligence, retaliatory prosecution, bad faith investigation, and breach of agreement. (Doc. 1). On June 20, 2017, Plaintiff filed his Motion for Leave to Proceed Without Prepayment of Fees, (Doc. 2), which the Court granted on June 22, 2017, and ordered the Clerk of Court to serve a copy of the summons and Complaint on Defendant pursuant to 28 U.S.C. § 1915(d) and Rule 4, Federal Rules of Civil Procedure, (hereinafter “FRCP” followed by the Rule number), (Doc. 3). Defendant was served on June 26, 2017, and per the Court's docket, its response was due by August 25, 2017. (Docs. 6).

         On July 20, 2017, Plaintiff filed his Motion to Amend Complaint, (Doc. 8, at 1-2), Motion to Appointment of Counsel, (Doc. 8, at 2-3), and Motion to Stay of Eviction, (Doc. 8, at 3-4). On July 21, 2017, Plaintiff filed his Amended Complaint, in which he brought claims of negligence and intentional infliction of emotional distress under the FTCA. (Doc. 9). On August 9, 2017, the Court granted, pursuant to FRCP 15(a)(2), his Motion to Amend Complaint, (Doc. 10, at 1-3); however, the Court denied his Motion for Appointment of Counsel and Motion to Stay Eviction, (Doc. 10, at 3-4).

         On August 17, 2017, the Court ordered the Clerk of Court to serve a copy of the summons and Amended Complaint on the Defendant. (Doc. 17). Defendant was served the summons and Amended Complaint on August 24, 2017, which made its answer due on October 23, 2017. (Doc. 19). On October 17, 2017, Defendant filed its Second Opposed Motion to Extend Responsive Pleading Deadline, (Doc. 22), that the Court granted and the deadline for Defendant to file its responsive pleading was extended to November 3, 2017, (Doc. 24).

         On November 3, 2017, Defendant filed its Motion to Dismiss and Supporting Memorandum, (Doc. 25), to which Plaintiff filed his Opposition to Motion to Dismiss, (Doc. 26), and supplements thereto, (Docs. 27-30). On November 9, 2017, the Court ordered Defendant to file its reply by November 15, 2017, and set the matter for oral argument before the undersigned, (Doc. 31), which was reset, (Docs. 35 & 39). Defendant filed its reply on November 15, 2017, (Doc. 33), and the matter came before the undersigned for oral argument on November 30, 2017, (Doc. 43).

         Before the hearing, Plaintiff filed his Motion to Strike, (Doc. 32), in which he motioned the Court to strike, pursuant to FRCP 12(f), Defendant's motion to dismiss, (Doc. 25), which the Court denied, (Doc. 44, at 1-2); he filed his Motion to Leave, (Doc. 36), in which he motioned for leave to file an amended complaint and waive PACER fees, and he filed his Withdraw Motion to Leave, (Doc. 38), in which he requested to withdraw his request to file an amended complaint and have PACER fees waived, that the Court granted insofar as he requested leave to file an amended complaint and denied insofar as he requested the Court to waive PACER fees, (Doc. 44, at 2); and he filed his Supplement, (Doc. 42), in which he ...


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