United States District Court, M.D. Alabama, Southern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
before the court is the Motion to Dismiss (Doc. 38), filed by
Defendants Department of the Army (the “Army”)
and Mark T. Esper. Plaintiff Marilyn Agee first filed a
complaint against the Army and Esper in February 2018 in case
number 18-cv-116-WKW-GMB. Doc. 1. Agee filed a similar
complaint against the same defendants in May 2018 in case
number 1:18-cv-473-WKW-SRW. The two cases were consolidated
pursuant to Rule 42(a) of the Federal Rules of Civil
Procedure on June 6, 2018, with case number 18-cv-116-WKW-GMB
designated as the lead case. Pursuant to 28 U.S.C. §
636(b)(1), these cases were referred to the undersigned
United States Magistrate Judge for review and submission of a
report with recommended findings of fact and conclusions of
law. Doc. 7. After careful consideration of the parties'
filings and the relevant law, and for the reasons
stated below, the Magistrate Judge RECOMMENDS that the Motion
to Dismiss (Doc. 38) be GRANTED.
JURISDICTION AND VENUE
court has subject matter jurisdiction over the claims in this
lawsuit pursuant to 28 U.S.C. § 1331. The parties do not
contest personal jurisdiction, nor do they contest that venue
is proper in the Middle District of Alabama. The court finds
adequate allegations to support both.
FACTUAL AND PROCEDURAL BACKGROUND
facts alleged in Agee's Amended Complaint are as follows.
Agee worked as a nutritionist at Fort Rucker in Alabama from
September 2015 until December 2015. Doc. 19 at 2. During her
employment, she was harassed and bullied due to her race and
gender. Doc. 19 at 1-2. She also believes that race and
gender discrimination caused her termination. Doc. 19 at 2.
other Fort Rucker nutritionists, who were white women, worked
in large offices. Doc. 19 at 2. But Kathy Vickers, Agee's
supervisor, assigned Agee to work in a former utilities
closet with another co-worker. Doc. 19 at 2. Additionally,
Agee was disciplined for some of the menus that she used.
Doc. 19-1 at 5. However, these menus were copies of approved
menus used by a previous nutritionist, a white woman, who
used them without incident. Doc. 19-1 at 5.
co-worker named Jerry Tyms, who had a history of violent
behavior and mental illness, often threw tantrums and
verbally attacked Agee. Doc. 19 at 2. Vickers allowed these
outbursts. Doc. 19 at 2.
Agee was discharged. Doc. 19-1 at 3. Agee later learned that
Vickers had planned to fire her about 30 days after she
started the job. Doc. 19-1 at 7. Agee was replaced by Madelyn
Sessions, a white woman without any nutritional experience.
Doc. 19 at 2.
filed a charge with the Army's Equal Employment
Opportunity Office (“EEO”) on March 28, 2016.
Doc. 19 at 3. She filed for Chapter 7 bankruptcy in August
2017. Docs. 39-2 & 41. Unaware that she was required to
do so, Agee did not list her employment discrimination cause
of action on her bankruptcy petition. Docs. 39-2 & 41.
Her debts were discharged in December 2017. Doc. 39-4. On
February 8, 2018, Agee received a Notice-of-Right-to-Sue
letter. Doc. 19 at 3. She timely initiated this action by
filing her a complaint on February 15, 2018. Doc. 1.
STANDARD OF REVIEW
motion filed under Federal Rule of Civil Procedure 12(b)(1)
challenges the district court's subject matter
jurisdiction and takes one of two forms: a facial attack or a
factual attack. A facial attack challenges subject matter
jurisdiction without disputing the facts alleged in the
complaint. Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990). When evaluating a facial attack, the court
considers the allegations in the plaintiff's complaint as
true. Id. “Such protections do not attach when
the district court's jurisdictional is based upon the
court's resolution of disputed facts.” Eaton v.
Dorchester Dev. Inc., 692 F.2d 727, 731-32 (11th Cir.
1982). A factual attack challenges the factual allegations
underlying the assertion of subject matter jurisdiction.
Lawrence, 919 F.2d at 1529. Because the
parties here do not dispute the factual allegations
underlying jurisdiction, this is a facial attack.
is a jurisdictional question, so “a dismissal for lack
of standing has the same effect as a dismissal for lack of
subject matter jurisdiction under Fed.R.Civ.P.
12(b)(1).” Stalley ex rel. U.S. v. Orlando
Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232
(11th Cir. 2008). “A dismissal for lack of subject
matter jurisdiction is not a judgment on the merits and is
entered without prejudice.” Id.