Ibrahim v. Bernhardt

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SULEIMAN IBRAHIM CIVIL ACTION

VERSUS NO: 19-cv-00101

DAVID BERNHARDT, ACTING SECTION: “KWR”

SECRETARY, DEPARTMENT OF THE

INTERIOR

ORDER

Before the Court is a Motion to Strike And/ Or Dismiss (R. Doc. 33) filed by the

Defendant, David Bernhardt, Acting Secretary of the Department of the Interior (“Secretary”,

“Defendant”, or “DOI”) seeking an order, pursuant to Federal Rules of Civil Procedure 8(a),

12(b)(1), 12(f), and 41(b), dismissing Plaintiff Suleiman Ibrahim (“Ibrahim”)’s Amended

Complaint (R. Doc. 32). In the alternative, Defendant seeks an order form this Court striking

portions of that pleading which do not comply with the above-referenced rules as well as the

Court’s previous orders entered on June 25, 2019 and July 10, 2019, respectively. See R. Docs. 30

& 32. Plaintiff Ibrahim opposes this motion. R. Doc. 38. This motion was heard on the briefs on

August 28, 2019. On November 1, 2019, following the consent of the parties, this matter was

referred to the undersigned United States Magistrate Judge in accordance with Title 28 U.S.C. §

636(c). R. Doc. 45.

I. Background

On January 7, 2019, Plaintiff Ibrahim filed a complaint in District Court alleging various

claims of discriminatory conduct by the Defendant David Bernhardt, Acting Secretary of the

Department of the Interior stemming from his employment with the Bureau of Safety and

Environmental Enforcement (“BSEE”). R. Doc. 1.

Generally, Ibrahim complains that BSEE treated him with unequal terms and conditions of

employment, failed to promote him, terminated his employment, and retaliated against him for

engaging in the protected activity of making an EEOC charge. R. Doc. 1, p. 4. Plaintiff Ibrahim is

a black male, who practices Islam, and is from Sudan. Id. Ibrahim indicated on a checkbox form

that BSEE discriminated against him on the basis of his race, color, gender/sex, religion, national

origin, and age. Id. This action was brought pursuant to both Title VII of the Civil Rights Act of

1964, as codified 42 U.S.C. §§ 2000e, et seq. (“Title VII”), as well as the Age Discrimination in

Employment Act of 1967, as codified 29 U.S.C. §§ 621 to 634 (“ADEA”). R. Doc. 1, p. 3.

This action appeals a final decision with the Equal Employment Opportunity Commission

(“EEOC”) as to Plaintiff’s July 21, 2016 complaint of employment discrimination. R. Doc. 1-2;

Ibrahim v. Bernhardt, EEOC Appeal No. 0120172370 (July 3, 2017). In that decision, the EEOC

found that Ibrahim worked as a Petroleum Engineer at the Agency’s BSEE in the Gulf of Mexico

region in New Orleans, Louisiana. R. Doc. 1-2, p. 1. The EEOC also found Ibrahim filed his charge

of employment discrimination against the DOI because he claimed he was subjected to hostile

work environment and was discriminated against on the basis of his race (African-American),

national origin (Sudanese), sex (male), religion (Muslim), color (black), and age (55), and in

reprisal for his protected EEO activity. Id.

Specifically, the EEOC considered these charges in purview of Ibrahim’s claims that he

was denied training, suspended for fourteen (14) days, belittled, and excluded from meetings. Id.

In issuing its decision, the EEOC focused on four main incidents brought to its attention in

Ibrahim’s formal complaint: (1) Ibrahim’s performance expectations were changed causing him to

underperform and be denied a within grade increase in September 2016; (2) on April 22, 2016,

Ibrahim was issued a proposed fourteen-day suspension without pay; (3) Ibrahim was denied

religious reasonable accommodation during Ramadan; and (4) between June 11, 2016 and June

27, 2016, Ibrahim was suspended without pay for fourteen days. R. Doc. 1-2, p. 2.

Plaintiff moved to add initial claims and consolidate this action with another action he

instituted against David Bernhardt, Acting Secretary, Department of the Interior. R. Docs. 12 &

28; see Ibrahim v. Bernhardt, No. 19-cv-09316 (E.D. La. filed April 12, 2019). The Court denied

his motion to amend finding the amendment futile where the Court does not possess jurisdiction

over the subject matter of the delinquently exhausted claims. See R. Doc. 30. As such, the Court

did not permit Plaintiff to add the claims that Ibrahim was discriminated against on the basis of his

sex (male), age, race (African-American), color (black), religion (Muslim), national origin

(Sudanese), and in reprisal for prior protected EEO activity when he was subjected to a hostile

work environment concerning promotional opportunities, training, religious accommodation, his

work performance and appraisals, and student loan repayment program participation as discussed

in Ibrahim’s October 8, 2015 EEOC Complaint and against BSEE. Ibrahim v. Bernhardt, EEOC

Appeal No. 0120180689 (July 3, 2017). See R. Doc. 12-1. The Court did, however, permit Plaintiff

to consolidate with this claim with two additional actions he had pending against BSEE stemming

from separate events and EEOC complaints. R. Doc. 19 (Ibrahim v. Bernhardt, 2:19-cv-09316-

KWR) & R. Doc. 21 (Ibrahim v. Bernhardt, 2:19-cv-02201-KWR).

On May 30, 2019, the Secretary moved for a more definite statement as the complaints

filed by Plaintiff were completed checkbox forms coupled with copies of administrative records

extracts, none of which contained direct allegations and ultimately hindered the DOI from framing

a responsive answer. R. Docs. 26 & 33-1, p. 2. The Court subsequently granted the DOI’s motion

and ordered that Plaintiff Suleiman Ibrahim file an amended complaint and required the Plaintiff

to specifically identify and detail the following:

1. facts of his Title VII claim and whether they were submitted to the EEOC or

handled at the administrative phase;

2. responsible management officials and what they did that he believes constitutes

discrimination;

3. the actions which he contends were discriminatory/retaliatory, or even on what

basis the officials/actions treated him disparately; and

4. whether he complained about the alleged discriminatory acts and the results of

the complaints made, to whom they were made and when they were made.

R. Doc. 31, p. 4.

As to this instant motion, the Secretary claims that Plaintiff has disregarded both the

Court’s orders and has asserted claims and theories inapt to federal sector employment

discrimination claims in filing a restated fifty-three (53) page complaint;1 that asserts twelve

separate claims for relief under both federal and state anti-discrimination law, that seeks

declaratory and injunctive relief, as well as compensatory, punitive, and liquidated damages that

includes pre- and post- judgement interest; and necessarily incorporates the claims the Court has

already disallowed Plaintiff from including. R. Doc. 33-1, p. 3. The Secretary also claims that

Plaintiff’s lengthy narratives, as opposed to plain factual averments, appear to be facially irrelevant

to any of the claims that Ibrahim timely exhausted. Id. As such, the Secretary contends that

Plaintiff’s complaint is subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1)

and for failure to comply with Federal Rule of Civil Procedure 8. Id.

1 Plaintiff fails to number his paragraphs as required by Federal Rule of Civil Procedure 10(b), and, as such,

Defendant is required to guess at the number of paragraphs (which it approximates in 147 paragraphs) and cite its

answer based upon this approximation. R. Doc. 33-1, p. 3.

Plaintiff Ibrahim opposes the motion contending that he has fully cooperated with the

Court’s instructions by editing and reforming his pleading in such a manner as to address

Defendant’s concerns. R. Doc. 38, p. 1. Specifically, Ibrahim contends that he responded to the

Court’s four directives. R. Doc. 38, p. 2-3. Ibrahim also states he included in the proposed pleading

facts related to numerous other charges he made with the EEOC and against the Secretary to

Ibrahim v. Bernhardt, EEOC Appeal No. 0120181334 and Ibrahim v. Bernhardt, EEOC Appeal

No. 0120182239, as well as three other EEOC decisions. See R. Doc. 38, in passim.

II. Standard of Review

Federal Rule of Civil Procedure (“Rule”) 8(a) provides “[a] pleading that states a claim for

relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the

court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to

relief; and

(3) a demand for the relief sought, which may include relief in the alternative or

different types of relief.

Fed. R. Civ. P. 8.

The purpose of Rule 8 is to “give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Payton v. United States, 550 F. App’x 194, 195 (5th Cir. 2013)

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[W]hat constitutes a ‘short and plain

statement’ for purposes of Rule 8 depends on the circumstances and the type of case.” Atwood v.

Humble Oil & Refining Co., 243 F.2d 885, 889 (5th Cir.), cert. denied, 355 U.S. 829 (1957)). “The

district court ‘should be given great leeway in determining whether a party has complied with’ the

rule.” Gordon v. Green, 602 F.2d 743, 745 (5th Cir. 1979).

A plaintiff who brings a claim pro se is entitled to a liberal reading of that complaint.

Payton, 550 F. App’x at 195 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). “[A] pro se

complaint, ‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal

pleadings drafted by lawyers.’” Payton, 550 F. App’x 194, 195 (citing Estelle v. Gamble, 429 U.S.

97, 106 (1976)). “Nevertheless, the liberal pro se pleading standard still demands compliance with

procedural standards.” Payton, 550 F. App’x at 195 (citing Douglass v. United Services Auto.

Ass’n, 65 F.3d 452, 455 n. 4 (5th Cir.1995)).

Nonetheless, even where a Plaintiff’s “claims of racial discrimination are conclusory and

fail to cite supporting facts, his pro se status required the court to give him an opportunity to amend

his complaint prior to dismissal.” Reece v. Countrywide Home Loans, 250 F. App’x 91, 92 (5th

Cir. 2007) (internal citations omitted) (citing Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.

1999)).

Moreover, Rule 41(b) provides “[i]f the plaintiff fails to prosecute or to comply with these

rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.

R. Civ. P. 41. The Fifth Circuit has consistently held that Rule 41(b) dismissals with prejudice will

be affirmed only upon a showing of the requisite factors “‘a clear record of delay or contumacious

conduct by the plaintiff’ . . ., and where lesser sanctions would not serve the best interests of

justice.” Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982). The Fifth Circuit also considers

aggravating factors to include: (1) the extent to which the plaintiff, as distinguished from his

counsel, was personally responsible for the delay; (2) the degree of actual prejudice to the

defendant; and (3) whether the delay was the result of intentional conduct. Id. Both requisite factors

must be bolstered by at least one aggravating factor in order to support a dismissal with prejudice.

Id.

The Fifth Circuit has cautioned most Rule 41(b) dismissals with prejudice involve

egregious and outrageous delays and are reserved to “cases where the plaintiff’s conduct has

threatened the integrity of the judicial process, often to the prejudice of the defense, leaving the

court no choice but to deny [] plaintiff its benefits.” Id., at 321; see also Callip v. Harris Cty. Child

Welfare Dep’t, 757 F.2d 1513, 1519 (5th Cir. 1985) (“sanction of dismissal with prejudice is

reserved for ‘the most egregious circumstances’”). Of the lesser sanctions to be considered include

“conditional dismissal, dismissal without prejudice, and explicit warnings are preliminary means

or less severe sanctions that may be used to safeguard a court’s undoubted right to control its

docket.” Id., at 321-22.

Finally, Rule 12(b)(1) requires dismissal of an action if the Court lacks jurisdiction over

the subject matter of the Plaintiff’s claim. Fed. R. Civ. Pro. 12(b)(1). The Fifth Circuit has held

“[t]he burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”

Raj v. Louisiana State Univ., 714 F.3d 322, 327 (5th Cir. 2013).

As an alternative to dismissing the action “[t]he court may also strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” pursuant to

Rule 12(f). Fed. R. Civ. Pro. 12(f). The court should only strike a party’s pleadings sparingly and

“when the pleading to be stricken has no possible relation to the controversy.” Veranda Assocs.,

L.P. v. Hooper, 496 F. App’x 455, 458 (5th Cir. 2012) (citing Augustus v. Bd. of Pub. Instruction,

306 F.2d 862, 868 (5th Cir. 1962) and Brown & Williamson Tobacco Corp. v. United States, 201

F.2d 819, 822 (6th Cir. 1953)). Still, although motions to strike are generally disfavored, a Rule

12(f) motion to strike is proper when the claim is insufficient as a matter of law. Kaiser Aluminum

& Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982).

III. Analysis

A. Compliance with the Federal Rules of Civil Procedure and the Court’s Orders

Defendant contends that Plaintiff has not complied with Federal Rule of Civil Procedure

8(a)’s requirement to provide a short plain statement of the facts where Plaintiff’s proposed

amended complaint’s factual allegations are over thirty-one (31) pages in length and includes

allegations of matters that occurred between October 2013 and November 2016, which this Court,

according to Defendant, has already held is time barred. See R. Docs. 32, p. 4-35 & 30.

Plaintiff, in opposition, contends that the length of his proposed pleading is necessary to

address Defendant’s concern and that he excluded from his proposed complaint elements from his

EEOC Complaint which the Court excluded in an order dated June 25, 2019. R. Doc. 38, p. 1; see

R. Doc. 30; see also Ibrahim v. Bernhardt, EEOC Appeal No. 0120180689. Plaintiff further

contends that the matters that the Court found time-barred are actually those between January 3,

2015 to March 4, 2016. Id.

In consideration of Rule (8)’s requirements the Court notes statements in a complaint are

not plain, where they are not clear and understandable and not free of excessive embellishment

and a complaint is not sufficiently short, where the averments are not simple, concise, and direct.

Atwood v. Humble Oil & Ref. Co., 243 F.2d 885, 888 (5th Cir. 1957). Still, the Fifth Circuit

considers brevity of lesser importance than strategic choice often so long as the complaint does

not stagger into the thousands of pages. See id. (“Brevity is certainly desirable in order that the

time of court and counsel may be conserved and the cost of printing minimized. But such

considerations do not rank in importance with the right and the duty of a litigant to present his

demands through counsel of his own choosing and in a style and form of expression which

represent the attorney’s honest effort to present the claims according to his own notions of their

merits and their strong and weak points.”); see also, e.g., Gordon v. Green, 602 F.2d 743, 745

(5th Cir. 1979) (considering an eighteen (18) volume pleading in excess of 4,000 pages not short

within the meaning of Federal Rule of Civil Procedure 8(a)); but see Jumonville v. Dep’t of

Treasury, 50 F.3d 1033 (5th Cir. 1995) (unpublished) (considering dismissal with prejudice proper

where district court allowed the Plaintiff multiple opportunities to amend her complaint to bring it

into compliance with Rule 8, but, notwithstanding, Plaintiff’s third amended complaint twenty-

one (21) page pleading with forty-one (41) paragraphs still contained excess verbiage and

irrelevant, repetitious, and unintelligible answers)2.

The Court will not fault Plaintiff for including more detailed factual allegations made in

response to the Court’s order that granted Defendant’s Motion for More Definite Statement and

that specifically ordered the Plaintiff to incorporate more detail into his complaint.3 See R. Doc.

31, p. 4.

Still, in the Court’s June 25, 2019 Order, it considered the proposed amendments and the

inclusion of factual allegations from Plaintiff’s EEOC complaint styled Ibrahim v. Bernhardt,

EEOC Appeal No. 0120180689. That EEOC charge dealt specifically with Defendant’s varied

conduct against Plaintiff from promotion denial, denied trainings, denied reimbursements,

construing his accent as a sign of incompetency, not offering paid holiday for Ramadan in relation

to Plaintiff’s Islamic religious practices, forcing Plaintiff to use his lunch break and sick leave to

compensate for Friday prayer and Muslim holidays, and retaliating against Plaintiff for initiating

an EEOC Complaint. R. Doc. 12-2, p. 3-4. In that EEOC Complaint, Plaintiff provides various

2 The Court notes it reads Jumonville v. Dep’t of Treasury, 50 F.3d 1033 (5th Cir. 1995) without precedential

value where the Fifth Circuit determined to not publish the Jumonville opinion. See id. at fn. 1; see also Fed. R. App.

P. 47.5, et seq. The Court considers Jumonville to the extent that Defendant cited the case in its memorandum. See R.

Doc. 33-1, p. 5.

examples of this activity detailing numerous acts that occurred between the time period from

January 3, 2014 to September 25, 2015. See id. The Court found that the claimant failed to exhaust

his administrative remedies for both claims, and, as such, did not allow Plaintiff to add the claims

for they would be futile. R. Doc. 30, p. 4.

While Plaintiff contends that he has edited his pleading so to exclude elements from his

previous EEOC complaints, his proposed pleading is in actually replete with these EEOC

complaints’ factual allegations. See, e.g., R. Doc. 32 p. 5 ¶4—p. 8 ¶1, p. 8 ¶, p. 9 ¶2, p. 34, ¶2

(nonexclusive). The Court has already determined those allegations are futile in connection with

his non-exhausted and untimely EEOC complaint. See R. Doc. 30. As such, allegations detailing

those claims must be stricken from the proposed amended pleading.

Still, the Court hesitates to find that Plaintiff entirely ignored the Court’s previous orders.

For example, the Court stipulated that Ibrahim’s attempt to append EEOC rulings made during the

administrative process were insufficient to adequately state a claim, and, as such, Plaintiff has

submitted a supplemental complaint pursuant to that order that provides more details of the alleged

discrimination. See R. Doc. 31, p. 4. The Court also notes that Defendant attempts to identify the

responsible officials by naming Michael Saucier, David Trocquet, Lynard Carter, and Justin Josey

pursuant to the Court’s Order.4 R. Doc. 31, p. 4; see also R. Doc. 38, p. 2. Given his pro se status

and that English is his second language, the Court is more inclined to believe this was an attempt,

even if an inadequate one, to come into conformity with the Rule’s requirements. As such, the

Court considers a Rule 41(b) dismissal with prejudice inappropriate given the circumstances.

4 The Court here notes, however, its struggles to find that Plaintiff (1) identified the facts of his Title VII

claim and whether they were submitted to the EEOC or handled at the administrative phase and (4) whether he

complained about the alleged discriminatory acts and the results of the complaints made, and, if so, to whom and when

they were made. See R. Doc. 31, p. 4.

Notwithstanding, upon review of the proposed pleading, the Court finds many of the

allegations redundant,5 immaterial, and impertinent. The Court notes that, in this matter, Ibrahim

v. Bernhardt, EEOC No. DOI-BSEE-16-0361, Appeal No. 0120172370; Ibrahim v. Bernhardt,

EEOC No. DOI-BSEE-19-0023 (consolidated Civil Action No. 19-9316 (R. Doc. 1-2)); and

Ibrahim v. Bernhardt, EEOC No. DOI-BSEE-18-0272 (consolidated Civil Action No. 19-2201 (R.

Doc. 1-2)) are at issue.

These EEOC charges represent the formal charge of the following three claims. First, from

February 2016 through what Plaintiff indicated as the present where Plaintiff claims was subject

to a hostile work environment when (a) Plaintiff’s performance expectations were changed causing

him to underperform and be denied a within grade increase in September 2016, (b) on April 22,

2016 when Plaintiff was issued a proposed fourteen-day suspension without pay, (c) Plaintiff was

denied religious accommodation during Ramadan, and (d) when Plaintiff was suspended without

pay for fourteen days between June 11, 2016 and June 27, 2016. See Ibrahim v. Bernhardt, Civ.

A. No. 19-101, R. Doc. 1-2, p. 2. Second, Plaintiff’s October 12, 2018 termination from BSEE.

See Ibrahim v. Bernhardt, Civ. A. No. 19-9316, R. Doc. 1-2, p. 2. Third, Plaintiff was subjected

to a discriminatory hostile work environment when (a) on March 14, 2018, when Plaintiff’s first-

line supervisor allegedly enter his cubicle yelling, shouting, and cuffing his long sleeves, (b) on

April 26, 2018 when Plaintiff was denied equal access to earned time for religious activities, (c)

between February 27, 2018 and April 11, 2018 when credit for his work was granted to others, (d)

on April 9, 2018 when he was admonished for leaving his office during lunch time and reordered

safety glasses, and (e) from February 1, 2018 through the end of his employment when he was

5 To provide an example of the pleadings redundancy, Plaintiff Ibrahim repeats multiple times that he was

rated “minimally successful” by his supervisors on November 10, 2015. R. Doc. 32, p. 10 ¶3 & p. 12 ¶2.

ignored and isolated from all the other engineers. See Ibrahim v. Bernhardt, Civ. A. No. 19-2201,

R. Doc. 1-2, p. 1.

Background information and facts not directly associated with these claims is not only

extraneous and not necessary to Ibrahim’s claims, but also, in previous Court orders, has been

forbidden from inclusion in Plaintiff’s pleadings. Moreover, while Plaintiff has no longer simply

appended EEOC rulings, the Court grapples with finding the new proposed pleadings comes with

any sort of measurable increased clarity. Jiggetts v. D.C., 319 F.R.D. 408, 413 (D.D.C. 2017), aff'd

sub nom. Cooper v. D.C., No. 17-7021, 2017 WL 5664737 (D.C. Cir. Nov. 1, 2017) (“A complaint

that is excessively long, rambling, disjointed, incoherent, or full of irrelevant and confusing

material will patently fail the Rule’s standard, and so will a complaint that contains an untidy

assortment of claims that are neither plainly nor concisely stated, nor meaningfully distinguished

from bold conclusions, sharp harangues and personal comments” (internal quotations omitted)).

As such, the Court will strike the Plaintiff Ibrahim’s complaint while still providing the

Plaintiff an opportunity to file an amended complaint that complies with the Federal Rules of Civil

Procedure and this Court’s directives. See id. (finding that the appropriate remedy for a complaint

that fails to satisfy Rule 8, an appropriate remedy is to strike the complaint and to provide the

plaintiff with an opportunity to file an amended complaint that complies with the Rules, but noting

the charity of the court decreases where amended pleading continued to be filed without an

increase in clarity); see also Verfuerth v. Orion Energy Sys., Inc., 65 F. Supp. 3d 640, 652 (E.D.

Wis. 2014) (determining that striking an unusually long complaint the more appropriate solution

where the pleading contained over twenty pages of unnecessary background).

The Court also urges Plaintiff to comply with Federal Rule of Civil Procedure 10(b), which

requires the claims presented in pleading be set forth in separately numbered paragraphs. Fed. R.

Civ. P. 10(b). This rule not only promotes clarity in Defendant’s answer, but also enables the Court,

upon further future review, to provide specific instruction as to which paragraphs are acceptable

and which are to be precluded from proposed pleadings with greater clarity and precision.

The Court cautions Plaintiff—a litigant’s pro se status is not an excuse for continued

disregard for court procedure and compliance with the Federal Rules of Civil Procedure. As such,

further failure to come into compliance with the Rules and with the Court’s orders can result in a

dismissal with prejudice of all of Plaintiff’s claims. The Court also urges Plaintiff to follow the

guidelines as set forth in its previous June 25, 2019 Order (R. Doc. 30) when crafting his

supplemental complaint.

B. Causes of Actions Under Louisiana State Law

The Court next considers Plaintiff’s eighth, ninth, tenth, eleventh, and twelfth claim for

relief, which all seek relief pursuant to Louisiana Employment Discrimination Law and Louisiana

Equal Pay Act. R. Doc. 32, p. 44-50. Defendant contends Title VII and Age Discrimination in

Employment Act of 1967 (“ADEA”) is comprehensive legislation that preempts state law. R. Doc.

33-1, p. 9. Plaintiff does not address this contention beyond excluding his Louisiana state law

claims from his memorandum in opposition (R. Doc. 38), which the Court notes is fashioned like

yet another complaint.6

“Title VII provides the exclusive remedy for employment discrimination claims raised by

federal employees.” Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996) (citing Brown v. Gen.

Servs. Admin., 425 U.S. 820, 835 (1976)). As such, a federal employee’s state tort claims are

6 While the Court views this as a concession by the Plaintiff that his state law claims must be removed from

the proposed pleading, the Court will analyze the issue regardless.

preempted by Title VII which is the exclusive and preemptive remedy for claims of discrimination

by federal employees. Hampton v. I.R.S., 913 F.2d 180, 182 (5th Cir. 1990).

The same is true for federal employee’s complaints of age discrimination and the ADEA.

Paterson v. Weinberger, 644 F.2d 521, 525 (5th Cir. 1981) (“the ADEA amendment was intended

to provide an exclusive remedy for age discrimination” for federal employees); see also

Buckhanan v. Shinseki, Civ. A. No. 13-278, 2013 WL 5517903, at *4 (S.D. Miss. Oct. 3, 2013)

(“when a federal employee brings an action alleging violations of both federal antidiscrimination

statutes and state law based on the same set of facts . . . state law claims are preempted”).

Here, Plaintiff Ibrahim was, at all relevant times, an engineer with the Bureau of Safety

and Environmental Enforcement under the United States Department of the Interior. As a federal

employee, Ibrahim’s exclusive remedy for claims of discrimination by federal employees is

provided in 42 U.S.C. § 2000e-16. Accordingly, the Court will dismiss with prejudice Plaintiff’s

claims for relief pursuant to Louisiana Employment Discrimination Law.

C. Demands for Punitive and Liquidated Damages and Pre-Judgment Interest

i. Punitive and Liquidated Damages

Finally, the Court considers Plaintiff’s demand for punitive and liquidated damages for

Title VII violations and pre-judgment interest. R. Doc. 32, p. 51 ¶¶5-6. Defendant contends, with

the exception of willful violations of the Equal Pay Act, remedies permitted in a federal sector

Title VII preceding do not include punitive and liquidated damages. Again, Plaintiff does not

explicitly address these contentions but excludes from his prayer for relief his demands for punitive

and liquidated damages, as well as the use of the phrase pre-judgment interest. 7 R. Doc. 38, p. 16.

The Civil Rights Act of 1991, which amended Title VII, expressly precludes a Title VII

plaintiff from recovering punitive damages against governments, government agencies, and

political subdivisions.” Logan v. Nicholson, No. CIV.A. H-04-4178, 2006 WL 2222745, at *3

(S.D. Tex. Aug. 2, 2006). As such, a plaintiff that is a federal employee seeking damages from the

government is “not statutorily entitled to recover exemplary damages on his or her Title VII

claims.” Id. (citing Oden v. Oktibbeha Cty., Miss., 246 F.3d 458, 465-66 (5th Cir. 2001).

This same logic extends to an ADEA action as well as a demand for liquidated damages.

Reynolds v. Octel Commc’ns Corp., 924 F. Supp. 743, 747 (N.D. Tex. 1995) (holding a plaintiff

cannot seeking punitive or liquidated damages against a federal employer in an ADEA action

because legislative history “indicates that Congress intended for liquidated damages awarded

under that statute to be punitive in nature.” (citing Trans World Airlines, Inc. v. Thurston, 469 U.S.

111, 124 (1985)).

As such, the Fifth Circuit has held federal employees are not entitled to liquidated damages

in case against their government employer without mention of waiver of sovereign immunity

liquidated damages in the legislation itself. Smith v. Office of Pers. Mgmt., 778 F.2d 258, 263–64

(5th Cir. 1985) (“Liquidated damages are permitted only in private sector cases in which the

employer's conduct is willful. Had Congress intended to allow such an extraordinary remedy in a

7 While the Court views this as a concession by the Plaintiff that his demands for punitive and liquidated

damages, as well as pre-judgment interest must be removed from the proposed pleading, the Court will analyze the

issue regardless.

suit against the United States, certainly Congress would have expressly provided for it. We refuse

to imply such a remedy in a suit against the sovereign.”).

Here, Plaintiff was a federal employee who is seeking punitive and liquidated damages

from the Department of the Interior, a federal government agency. The federal government has not

waived immunity from suit in either Title VII or ADEA suits against it and, as such, demands for

punitive and liquidated damages are barred by sovereign immunity. The Court, therefore, finds

Ibrahim is neither statutorily permitted to recovery exemplary, or punitive, damages nor liquidated

damages from the DOI. As such, the Court will dismiss with prejudice Plaintiff’s demands for

punitive and liquidated damages.

ii. Prejudgment and Post-Judgment Interest

In addition, “[a]part from constitutional requirements, in the absence of specific provision

by contract or statute, or ‘express consent. . . by Congress,’ interest does not run on a claim against

the United States.” United States v. Louisiana, 446 U.S. 253, 264–65, (1980) (citing Smyth v.

United States, 302 U.S. 329, 353 (1937); Albrecht v. United States, 329 U.S. 599, 605 (1947);

United States v. N. Y. Rayon Importing Co., 329 U.S. 654, 658–59 (1947)). So, while, Title VII

authorizes prejudgment interest as part of the backpay remedy in suits against private employers,

in order for the Department of the Interior, Congress must waive immunity for such awards

specifically. See Loeffler v. Frank, 486 U.S. 549, 557 (1988).8

Ibrahim provides no statutory basis as to an entitlement of prejudgment interest. See St.

Marks v. U.S. Dep’t of the Interior, 746 F. App’x 685, 688 (9th Cir. 2018) (pre-judgment interest

8 Unlike the Postal Office, the Department of the Interior was not designed to “be run more like a business.”

Id. at 556. The Court also notes that the United States Postal Service is an independent agency of the executive branch

whereas the United States Department of the Interior is a federal executive department.

is not appropriate where Plaintiff cannot identify a source of statutory authority to support the

request). Still, Title VII, as amended by the Civil Rights Act of 1991, and applicable to

employment by the federal government, provides “[t]he provisions of section 2000e-5(f) through

(k) of this title, as applicable, shall govern civil actions brought hereunder, and the same interest

to compensate for delay in payment shall be available as in cases involving nonpublic parties.” 42

U.S.C.A. § 2000e-16(d) (West).

Courts have interpreted this provision to mean awards of prejudgment and post-judgment

interest may be granted against the United States under Title VII. See, e.g., Orr v. Mukasey, 631

F. Supp. 2d 138, 157 (D.P.R. 2009) (prejudgment interest against the United States Attorney

General for former U.S. Marshals Service’s Title VII claims appropriate); Arneson v. Sullivan, 958

F. Supp. 443, 445 (E.D. Mo. 1996) (‘The Civil Rights Act of 1991 amended Title VII to authorize

the award of prejudgment interest in cases against the federal government.”), aff'd in part, rev’d

in part sub nom. Arneson v. Callahan, 128 F.3d 1243 (8th Cir. 1997) (“Congress amended Title

VII, expressly waiving sovereign immunity from interest.”); and Reed v. Mineta, 93 F. App'x 195,

200 (10th Cir. 2004) (summary denial of terminated Federal Aviation Administration’s former

employee’s request for prejudgment interest in Title VII complaint was abuse of district court's

discretion).

Based on the explicit language of the Civil Rights Act of 1991, as well as the decisions of

these aforementioned courts, this Court does not find it appropriate to preclude Plaintiff from

including in his prayer for relief a demand for prejudgment and post-judgment interest in his prayer

for relief. As such, the Court denies Defendant Secretary’s request to dismiss Plaintiff’s prayer for

prejudgment and post-judgment interest.

IV. Conclusion

Accordingly,

IT IS ORDERED that the Defendant's Motion to Strike And/ Or Dismiss (R. Doc. 33)

is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that the motion is GRANTED to the extent the Court will

(1) strike Plaintiff's Proposed Amended Complaint (R. Doc. 32), (2) dismiss with prejudice

Plaintiff's Louisiana state law claims, and (3) dismiss with prejudice Plaintiff's prayer for punitive

and liquidated damages.

IT IS FURTHER ORDERED that the motion is DENIED to the extent the Court (1) will

not dismiss Plaintiff's claims in their entirety and (2) will not dismiss Plaintiffs prayer for

prejudgment and post-judgment interest.

IT IS FURTHER ORDERED that Plaintiff shall file an AMENDED COMPLAINT

consistent with the instructions contained in this order no later than fourteen days (14 days) from

the signing of this order.

New Orleans, Louisiana, this 8th day of January 2020.

KAREN WELLS

CHIEF UNITED STATES MAGISTRATE JUDGE

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