Noel, Ess v. Huston, No. 8:2013cv01412 - Document 11 (D. Md. 2013)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 11/21/13 sat). Signed by Chief Judge Deborah K. Chasanow on 11/21/13. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : SHEILA NOEL : v. : Civil Action No. DKC 13-1412 : ANN HUSTON : MEMORANDUM OPINION Presently pending and ready for resolution is an unopposed motion filed by the government to substitute the United States as the sole defendant and to subject matter jurisdiction. dismiss the (ECF No. 5). case for lack of The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be granted. I. Background Plaintiff Sheila Noel, proceeding pro se, commenced this action on March 15, 2013, by filing a complaint in the District Court of Maryland for Montgomery County against Defendant Ann Huston. According to the complaint, Plaintiff suffered personal, physical, [and] emotional injury [Defendant] caused at work related to harassment on the job and stress caused by injury on [August 10, 2012]. (ECF No. 2, at 1). seeks damages in the amount of $30,000. Plaintiff Ms. Huston government was filed Plaintiff on of a notice of Ms. and Institutes served Huston April are Health, 15. removal, that On asserting employees Plaintiff May of 10, that the both the money seeks National damages resulting from alleged conduct by Defendant occurring within the scope of 2679(d), United her the employment, case States is and and that, properly is pursuant deemed removable. an On to 28 action the U.S.C. § against same the date, the government filed a motion to substitute the United States as the sole defendant and to dismiss the complaint for lack of subject matter jurisdiction. Plaintiff that a (ECF No. 5). potentially The clerk provided notice to dispositive motion was pending against her, but Plaintiff did not respond. II. Motion to Substitute The Government asserts that the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 ( FTCA ), requires substitution of the United States as the sole party defendant for Plaintiff s tort claims. The FTCA immunizes federal employees from liability for negligent or wrongful act[s] or omission[s] . . . while acting within the scope of [their] office or employment. 28 U.S.C. § 2679(b)(1). When a federal employee is sued for tortious conduct, the United States Attorney for that district, acting on behalf of the Attorney General, must certify whether the employee was acting within 2 the scope of his or her employment at 2679(d)(1). the time of the alleged act. 28 U.S.C. § If the United States Attorney certifies that the employee acted within the scope of employment, then (1) the United States is substituted as the sole defendant; (2) suits filed in state court must be removed to federal court; and (3) the plaintiff may sue the United States only in accordance with the FTCA. See id.; see also Maron v. United States, 126 F.3d 317, 321 (4th Cir. 1997). Here, the United States Attorney for the District of Maryland has certified that Ms. Huston was acting within the scope of her employment for the National Institutes of Health at the time of the alleged conduct (ECF No. 10), and Plaintiff has not challenged this assertion. See Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1155 (4th Cir. 1997) ( If the plaintiff does not come certification is conclusive ). forward with any evidence, the Accordingly, Ms. Huston will be dismissed and the motion to substitute the United States as the sole defendant will be granted. III. Motion to Dismiss A. Standard of Review Motions to dismiss for lack of subject matter jurisdiction are governed by Federal Rule of Civil Procedure 12(b)(1). plaintiff bears the burden of proving jurisdiction exists in federal court. 3 that subject The matter See Evans v. B.F. Perkins Co., a Div. of Standex Int l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In deciding evidence outside such the a motion, pleadings to the court determine jurisdiction over the case before it. may consider whether it has Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. a Rule 12(b)(1) motion only if the The court should grant material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. B. Richmond, 945 F.2d at 768. Analysis The government argues that Plaintiff s tort claims should be dismissed remedies. due to her failure to exhaust administrative Under the FTCA, the plaintiff must first present a tort claim to the relevant government agency before an action can be filed jurisdictional in and court. cannot The be exhaustion waived. See requirement Plyler v. is United States, 900 F.2d 41, 42 (4th Cir. 1990). The government submits the declaration of Kara Hicks, an attorney in the Office of General Counsel, Department of Health and Human Services, asserting that the general counsel s office maintains in a computerized database a record of administrative tort claims filed with the Department, that Ms. Hicks caused a search of the . . . database to be conducted, and that she found no record of an administrative tort claim presented to 4 the Department by or on behalf of Shelia Noel. Plaintiff does not challenge this evidence. (ECF No. 5-2). Accordingly, the record establishes that she has failed to exhaust administrative remedies under the FTCA with respect to any tort claim. Insofar as Plaintiff intended to raise claims of employment discrimination under Title VII of the Civil Right Act of 1964, 42 U.S.C. § 2000(e) et seq. ( Title VII ), the government contends that she has also failed to exhaust her administrative remedies. Under Title VII, a federal employee must file a formal complaint with the EEOC within fifteen days of receiving the right to do so. formal complaint 29 C.F.R. § 1614.106(b). within the fifteen-day Failure to file a period constitutes a failure to exhaust administrative remedies and is grounds for dismissal. 2005); See Moret v. Harvey, 381 F.Supp.2d 458, 467 (D.Md. Ringgold v. Napolitano, Civ. No. CCB-13-210, 2013 WL 4852246, at *3 (D.Md. Sept. 10, 2013). In support of its claim in this regard, the government attaches the declaration Employment Opportunity Opportunity and of Karen Specialist Diversity in Management, Fitzpatrick, the Office Division of an Equal of Equal Complaints Management and Resolution, National Institutes of Health, United States Department of Health and Human Services. Ms. Fitzpatrick asserts that Plaintiff has filed two (2) active, EEO complaints (one formal and one informal), in which she alleges that she has 5 experienced discrimination and harassment in the workplace, and in which she names her supervisor, Ann Huston . . . as [a] Responsible Management Official[.] (ECF No. 5-4 ¶ 3). The first of these complaints was filed on December 15, 2011, and is currently under investigation filed by [Plaintiff]. (Id.).1 due to several amendments The second, according to Ms. Fitzpatrick, is a pre-complaint . . . which was filed on March 4, 2013, and is currently closed, pending [Plaintiff s] election to file a formal complaint, which she has not yet done. (Id. at ¶ 4). To the extent that Plaintiff intended to allege employment discrimination under Title VII, the record demonstrates that she has failed to exhaust administrative remedies with respect to such claim. III. Conclusion For the foregoing reasons, the government s motion will be granted. A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 1 That complaint, filed before the alleged injury on August 10, 2012, that is the subject of this suit, is unrelated. 6
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