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Agee v. Department of Army

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

November 20, 2018

MARILYN AGEE, Plaintiff,
v.
DEPARTMENT OF THE ARMY, and MARK T. ESPER, Secretary of the Army, Defendants. MARILYN AGEE, Plaintiff,
v.
DEPARTMENT OF THE ARMY, and MARK T. ESPER, Secretary of the Army, Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE

         Pending 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[1] and the relevant law, and for the reasons stated below, the Magistrate Judge RECOMMENDS that the Motion to Dismiss (Doc. 38) be GRANTED.

         I. JURISDICTION AND VENUE

         The 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         The 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.

         The 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.

         A 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.

         Eventually, 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.

         Agee 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.

         III. STANDARD OF REVIEW

         A 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.

         Standing 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.

         IV. ...


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