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Turnage v. Esper

United States District Court, N.D. Alabama, Northeastern Division

July 12, 2019

JAMES E. TURNAGE, Claimant,
v.
DR. MARK T. ESPER, Secretary, U.S. Department of the Army, Defendant.

          MEMORANDUM OPINION

         James Turnage is an African-American civilian employee of the United States Army at Redstone Arsenal in Huntsville, Alabama, who filed a pro se complaint against the Secretary of the Army for alleged violations of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e et seq.[1] Defendant moved to dismiss all of plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. Upon consideration of the motion, briefs, plaintiff's complaint, and the attachments to the complaint, the court concludes the motion should be granted in part and denied in part.

         I. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a complaint for, among other reasons, “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). This rule must be read together with Rule 8(a), which requires that a pleading contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While that pleading standard does not require “detailed factual allegations, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007), it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). As the Supreme Court stated in Iqbal:

A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” [Twombly, 550 U.S., at 555]. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id., at 557.
To survive a motion to dismiss founded upon Federal Rule of Civil Procedure 12(b)(6), [for failure to state a claim upon which relief can be granted], a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Id., at 570. 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. Id., at 556. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id., at 557 (brackets omitted).
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not “show[n]” - “that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 678-79 (emphasis supplied, second and fourth alterations in original, other alterations supplied).

         II. ALLEGATIONS OF PLAINTIFF'S COMPLAINT

         Plaintiff completed and filed a complaint form for pro se litigants, but the attachments to the complaint contain the substance of his allegations. Accordingly, the court will consider both the complaint form and the attachments in evaluating the viability of plaintiff's claims.[2]

         Between May 14, 2007 and March 10, 2014, plaintiff served as a General Engineer at pay grade “DB-0801-04” for the Army's Aviation and Missile Research, Development and Engineering Center at Redstone Arsenal.[3] He complains about four employment decisions the Army made during that time period:

Incident A: During May 2007, he became aware that he was not selected for a canvassed Supervisory (DB-0801-04) position located in the Air and Missile Defense Branch located in the Production Engineering Division within the Engineering Directorate;
Incident B: During January 2008, he became aware that he was not selected for a canvassed Supervisory (DB-0801-04) position located in the Aviation Branch located in the Production Engineering Division within the Engineering Directorate;
Incident A [sic: “C”]: On or about March 4, 2013, he became aware that he was not selected for a canvassed Supervisory General Engineer (DB-0801-04) position located in the Production Engineering Division within the Engineering Directorate; and,
Incident D: On or about March 19, 2014, he was non-selected for a canvassed Supervisory General Engineer (Platform Branch Supervisor, DB-0801-04) position located in the Production Engineering Division within the Engineering Directorate.

         Doc. no. 1-1, at ECF 2 (alteration supplied). The term “canvassed” means that the Army sent an e-mail advertising the job opening to all current, qualified employees, which, for the positions described above, included all engineers at the DB-04 level.[4]None of the canvassed positions involved a promotion to a higher pay grade, but the Army awarded supervisory engineers at the DB-04 level a ten-percent pay-differential over non-supervisory DB-04 engineers.[5] The Army selected white males who, plaintiff, alleges, were less qualified than he for all of the positions described above.[6]

         Mike Lawrence, a white male Supervisory General Engineer at the DB-0801-04 grade level, was plaintiff's second-level supervisor between 2007 and 2014, on the dates of all of the contested employment decisions.[7] After plaintiff interviewed for the 2014 position, Lawrence assigned him a score of 70 out of 100. Lawrence awarded the position to an white male applicant who received an interview score of 83. Plaintiff alleges that his 2014 interview score was racial evidence of discrimination, because he had received higher scores on the interviews for the 2007, 2008, and 2013 positions (i.e., 81, 83, and 84, respectively).[8]

         Plaintiff contacted Redstone Arsenal's Equal Employment Opportunity (“EEO”) Office on April 1, 2014, and filed a formal EEO complaint on June 19, 2014. The Army attempted mediation and held a fact-finding conference on November 7, 2014.[9] Plaintiff was not satisfied with the results of those proceedings, however, and so he requested and received a hearing before an EEO Administrative Judge.[10] The Administrative Judge found in favor of the Army, and that decision was affirmed on administrative appeal.[11]

         Plaintiff received a “reassignment email” on March 30, 2015.[12] He also received a formal memorandum on June 23, 2015, informing him that he would be reassigned, effective July 12, 2015.[13] He attached to his complaint an undated memorandum regarding the reassignment, but it is not clear whether that attachment is the March 30 email or the June 23 memorandum referenced in the complaint. In any event, the attachment states:

Due to the Joint Attack Munitions Systems (JAMS) Project Management Office (PMO) determination that there is inadequate senior level DB-IV work to support a DB-IV Team Leader and a senior DB-IV as part of the team, it is necessary to reassign you from the JAMS PMO to the PD TMDE to support the Test Equipment Modernization Program. This action will be effective 12 Jul 2015. You will report to Mr. Ben Martin as your immediate supervisor [and Senior Rater]. You will work with him to ...

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