Armstrong v. Whitaker

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER, UNITED STATES DISTRICT JUDGE

         Plaintiff Reshawn Armstrong (“Plaintiff” or “Armstrong”) brings this action against the United States Attorney General for claims emerging from her employment at FCI Aliceville in Pickens County, Alabama.^[1] Before the Court are Defendant's Motion to Dismiss Defamation/Libel Claim (doc. 64.) and Plaintiff's Motion for Leave to File Amended Complaint (doc. 69). Plaintiff has filed her timely response to Defendant's motion to dismiss (doc. 67). The motions are now ripe for review. For the reasons stated below, Defendant's Motion (doc. 64) is due to be granted, and Plaintiff's Motion (doc. 69) is due to be granted in part and denied in part.

         I. Background^[2]

         The facts of this case were previously discussed by this Court in its two prior Memorandums of Opinion and Orders on Defendant's Motions to Dismiss. (Docs. 20 & 46.) Accordingly, the Court includes only a brief overview of the relevant facts alleged.^[3] Plaintiff has been a Federal Bureau of Prisons employee since 2007. Armstrong began work at FCI Aliceville, in Pickens County, Alabama in August of 2012. Currently, Armstrong serves as a Senior Officer Specialist. While at FCI Aliceville, Armstrong has received exceed/excellent and outstanding ratings as well as incentive awards for her job performance. Prior to 2015, Armstrong had no disciplinary actions taken against her.

         In 2015, Armstrong began to apply for various jobs and promotions at other institutions within the Department of Justice. When Armstrong applied, she alleges that her supervisors provided a number of false and derogatory reference checks. Armstrong alleges that these reference checks interfered with her promotion to Gl-9 and GS-9/11 positions at other institutions. For example, on March 30, 2015, the Warden at FCI Aliceville is alleged to have falsely stated in her reference check that there was an “open case” of “disciplinary action within the last two years” against Armstrong for job announcement HR-N-2015-009-HON. The Warden again answered yes to the question of whether Armstrong had any disciplinary action against her within the last two years and rated Armstrong job skills as average for job posting HR-N-2015-0009-HON, despite her prior high ratings. Armstrong asserts that the Associate Warden at FCI Aliceville made similar statements in Armstrong's reference checks for job postings MEN-2015-0030-0002, BSG-2015-0040-0001, PHX-2015-00439, HR-N-2015-0007-LOM. Armstrong alleges that at least two reference checks were purposefully written to confuse selecting officials.

         In August 2015, Armstrong became aware of these reference checks and met with her EEO Counselor. Subsequently, Armstrong filed an EEO Complaint (“2015 EEO Complaint”) alleging discrimination based on sex and retaliation that included her allegations of that the Warden and others at FCI Aliceville were writing false and negative reference checks. After the EEO process was initiated, Armstrong alleges that the Warden admitted “fault” regarding Armstrong's complaints about the contents of the reference checks.

         II. Standard of Review

         a. 12(b)(1)

         A motion to dismiss for lack of subject-matter jurisdiction filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a court's statutory or constitutional power to adjudicate a case. Motions to dismiss under Rule 12(b)(1) may take the form of either a facial or a factual attack. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999). Under a facial attack, the allegations in the complaint are taken as true for the purposes of the motion. Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994). A factual challenge, on the other hand, questions the existence of subject matter jurisdiction based on matters outside the pleadings. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Under a factual challenge, the Court may hear conflicting evidence and decide the factual issues that determine jurisdiction. Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). The burden of proof on a Rule 12(b)(1) motion is on the party averring jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942).

         b. 12(b)(6)

         In general, a pleading must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, in order to withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a complaint “must plead enough facts to state a claim to relief that is plausible on its face.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347-48 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated another way, the factual allegations in the complaint must be sufficient to “raise a right to relief above the speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). A complaint that “succeeds in identifying facts that are suggestive enough to render [the necessary elements of a claim] plausible” will survive a motion to dismiss. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted).

         In evaluating the sufficiency of a complaint, this Court first “identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[] veracity” of the complaint's “well-pleaded factual allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.” Id. Review of the complaint is “a context-specific task that requires [this Court] to draw on its judicial experience and common sense.” Id. If the pleading “contain[s] enough information regarding the material elements of a cause of action to support recovery under some ‘viable legal theory, '” it satisfies the notice pleading standard. Am. Fed'n of Labor & Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)).

         III. Discussion

         a. Subject ...