United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Hawkins, proceeding pro se, brings this action
against Mark T. Esper, as Secretary for the Department of the
Army,  HQAMC/LOGSA, a sub-agency of the United
States Army, and HQAMC/LOGSA supervisors Mark Witt, Danny
Bordeaux, and Fred Willis. See doc. 19. Hawkins
alleges claims, pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e-2000e-17, for
employment discrimination on the bases of race, color,
gender, disability, and retaliation. Id. at 3. The
Defendants have moved to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6).
See doc. 26. The motion is fully briefed, doc. 36,
and ripe for review. For the reasons stated below-in
particular Hawkins' failure to properly serve Secretary
Esper, because Hawkins cannot sue a sub-agency of the Army or
his supervisors, and because Hawkins failed to exhaust his
claims against the Secretary-the motion is due to be granted.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action” are insufficient. Iqbal, 556 U.S. at
678 (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (citing
Bell Atl. Corp., 550 U.S. at 557).
Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be
granted. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678 (citations and internal
quotation marks omitted). A complaint states a facially
plausible claim for relief “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. (citation omitted). The
complaint must establish “more than a sheer possibility
that a defendant has acted unlawfully.” Id.;
see also Bell Atl. Corp., 550 U.S. at 555
(“Factual allegations must be enough to raise a right
to relief above the speculative level”). Ultimately,
this inquiry is a “context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
Additionally, because Hawkins is proceeding pro se,
the court must construe the complaint more liberally than it
would pleadings drafted by lawyers. Hughes v. Rowe,
449 U.S. 5, 9 (1980); Boxer X v. Harris, 437 F.3d
1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held
to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
an African-American man, doc. 19 at 24, had worked as a
civilian employee for the Army for thirty years and as a
Senior Leader for eighteen years when he approached his Equal
Employment Opportunity Commission officer with complaints of
discrimination, harassment, and disparate treatment on the
basis of race. Id. at 20. Ultimately, Hawkins filed
six complaints with his EEOC office between January 2016 and
October 2017. Doc. 7 at 13. Four of these complaints are at
issue in this case.
first complaint, EEO Complaint 289, Hawkins alleged claims
against his supervisors, Defendants Mark Witt and Danny
Bordeaux, as well as a “Mr. Dwyer, ” all white
men, for discrimination, harassment, disparate treatment, and
retaliation. Doc. 19 at 20. Allegedly, in response to this
initial complaint, Hawkins' supervisors began to
“come after [him], ” creating a “toxic
environment” and “forc[ing him] . . . to take
another position.” Id. Based on this alleged
conduct, Hawkins sought mental health care for stress, and
his psychologist advised him to avoid his workplace.
Id. In keeping with this advice, Hawkins used
“[his] personal leave . . . in order not to have a
nervous breakdown at work.” Id.
complaint was ultimately resolved through a Negotiated
Settlement Agreement through which Hawkins received a new
supervisor. Docs. 26-1 at 4. But, Hawkins alleged thereafter
that one of his former supervisors breached the terms of the
Agreement by informing the new supervisor, Defendant Fred
Willis, of Hawkins' past complaint. Doc. 19 at
20. After investigation, the Army issued a Final
Agency Decision finding no breach, see doc. 26-5,
and the Office of Federal Operations (OFO) affirmed, doc.
26-1 at 3-4.
incidents at issue in Hawkins' second complaint, EEO
Complaint 2385, concerned the conduct of the new supervisor,
Willis. Doc. 19 at 20. Allegedly, after a conversation with
Hawkins' previous supervisor, Willis “began to
treat [Hawkins] differently.” Id. at 21. For
example, when Hawkins inquired about an alternate work
schedule, Willis told him, “we don't do that
here.” Id. When Hawkins showed Willis that the
collective bargaining agreement allowed for such a schedule,
Willis “became very agitated, ” and his treatment
of Hawkins worsened. Id.
this second complaint, the EEO Office provided Hawkins a
Notice of Right to File a Formal Complaint of Discrimination,
which “contains clear and unambiguous filing
instructions, ” including a directive to file a
complaint within fifteen calendar days of receiving the
Notice. Doc. 19 at 24. Despite the clear notice, Hawkins
waited twenty-nine days to file his formal complaint. Doc.
26-2 at 3. The Army dismissed the complaint as untimely, doc.
26-6 at 1-2, and the OFO affirmed and denied Hawkins'
request for reconsideration, doc. 26-2 at 4.
third complaint, EEO Complaint 382, involved Willis'
alleged increasingly poor treatment of him. See Id.
Allegedly, Willis held Hawkins to different standards than
other employees by requiring Hawkins to report his breaks,
demanding that Hawkins utilize his leave when he arrived a
few minutes late to work, and delaying Hawkins' leave
forms, causing him to miss a family funeral. Id.
Willis also gave Hawkins a three out of five on an annual
performance review, and when the union requested that Willis
substantiate the rating by producing evidence of counseling
and training he directed at Hawkins in response to this
allegedly poor performance (which he could not do), Willis
“became more agitated.” Id. Hawkins had
never received such a low rating previously, and the rating
has created serious consequences for his career. Id.
subsequently received his Notice of Right to file a formal
EEO complaint as to this third complaint. Doc. 26-3 at 3.
Hawkins filed his formal complaint eighteen days later, and
EEO dismissed it as untimely after finding “ample
proof” that Hawkins “was in possession of the
Notice of Right to File a Formal Complaint of
Discrimination.” Doc. 26-7 at 1-2. The OFO affirmed the
dismissal. See doc. 26-3 at 4.
filed his final complaint, EEO Complaint 1953, against his
co-worker, Diana Willis. Doc. 19 at 16. Leading up to this
complaint, Hawkins' co-workers mocked the fact that they
had to undergo sensitivity training in response to
Hawkins' previous complaints. Id. Some of the
co-workers criticized the training and the underlying
complaints, with one asking, “why do we have to do this
BULLSHIT, I have been here . . . for 10 [years] and never
had to do this bull shit, ” and another responding,
“some punk went w[h]ining and now we have to do
this.” Id. For her part, Willis had not spoken
to Hawkins for eight months, and yet one morning, while
Hawkins was speaking with a co-worker, id. at 18,
Willis entered the room, greeted Hawkins' co-workers, and
then demanded of Hawkins, “what is going on with this
BS behind me[?], ” id. at 16. Hawkins
maintains that Willis' statement was a reference to the
co-workers discussing the sensitivity training. Id.
Hawkins immediately left the room and filed his complaint
before taking leave to avoid ...