The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:20-CV-499-BO
CHANIELLE L. WOODFORD, )
Plaintiff, )
)
v. ) ORDER
)
UNITED STATES OF AMERICA; )
UNITED STATES DEPARTMENT)
OF JUSTICE, BUREAU OF )
PRISONS, )
Defendants. )
This cause comes before the Court on defendant’s motion to dismiss plaintiff's complaint
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has
responded, defendant has replied, and plaintiff has been permitted to file a sur-reply. In this
posture, the motion is ripe for ruling and, for the reasons that follow, the motion is denied.
BACKGROUND
Plaintiff initiated this action against her employer alleging claims for assault and battery,
negligence, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended.
Plaintiff brings her state law claims against defendants pursuant to the Federal Tort Claims Act.
[DE 1].
Plaintiff alleges that she has been an exemplary Corrections Officer for the federal
Bureau of Prisons (BOP) since she began her employment in August 2009. Plaintiff alleges that
she began working at the Federal Correctional Center at Butner (FCC Butner) in 2014, where she
assigned to the FCI-II facility. In October 2019, plaintiff was reassigned to the FCI-I facility at
FCI Butner. Plaintiff alleges that her supervisor, Captain Reginald Wright, sexually assaulted
and sexually harassed her. Specifically, plaintiff alleges that in late 2016 or 2017 Wright
assaulted plaintiff in the staff lounge by grabbing her arms, pinning her up against the wall, and
forcibly kissing her and fondling her breasts and groin over her clothes. Plaintiff was able to
break free from Wright’s grip, and, although she was terrified, she did not report the misconduct
as she had heard that Wright had found ways to reassign subordinate female staff who attempted
to report his misconduct and had further been physically violent with at least two women.
Plaintiff alleges that after the incident in the staff lounge Wright would touch her inappropriately
while she performed her duties, leer at her breasts and buttocks, and routinely call plaintiff's
office phone using sexual innuendos.
Plaintiff alleges that in July 2018 she stood up to Wright after he tried to pull her into his
office, refusing his advances and forcefully telling Wright to stop. Plaintiff alleges that Wright
then began an unlawful campaign against plaintiff of retaliation and harassment. Plaintiff's
supervising lieutenants, who were Wright’s friends, began, among other things, lowering her
performance evaluations without justification, singling plaintiff out for discipline, and fabricating
memoranda which described incidents with plaintiff that never happened in order to trigger
threat assessments.
On February 12, 2019, plaintiff contacted the EEO Counselor at FCC Butner to formally
complain about her treatment by her supervising lieutenants; plaintiff elected not to report
Wright’s sexual harassment and assault fearing her treatment would get worse. Plaintiff later
learned that Wright had a history of sexual harassment and retaliation against female officers and
that, despite knowledge of this, FCC Butner officials permitted White to keep his position where
he continued to harass, assault, and retaliate against female officers. Plaintiff further alleges that
after she initiated an Equal Employment Opportunity (EEO) proceeding on April 9, 2019, she
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received incorrect guidance from the EEO Counselor regarding the allegations she could make
and was prevented from amending her EEO complaint.
DISCUSSION
Defendants have moved to dismiss plaintiff's complaints on several grounds, contending
that the Court lacks subject matter jurisdiction over some of her claims and that plaintiff has
otherwise failed to state a claim upon which relief may be granted. Defendants argue that
plaintiff's Federal Tort Claims Act (FTCA) claims should be dismissed for lack of subject matter
jurisdiction because plaintiff did not properly exhaust her administrative remedy, that each tort
claim is preempted by the Federal Employees’ Compensation Act (FECA) and Title VII, and that
the alleged sexual assault is clearly conduct beyond the scope of plaintiff's supervisor’s
employment. Defendants additionally argue that plaintiff's Title VII retaliation claim should be
dismissed for failure to exhaust.
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of
subject matter jurisdiction. “Subject-matter jurisdiction cannot be forfeited or waived and should
be considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (citation
omitted). When subject-matter jurisdiction is challenged, the plaintiff has the burden of proving
jurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir.
1999). When a facial challenge to subject-matter jurisdiction is raised, the facts alleged by the
plaintiff in the complaint are taken as true, “and the motion must be denied if the complaint
alleges sufficient facts to invoke subject-matter jurisdiction.” Kerns v. United States, 585 F.3d
187, 192 (4th Cir. 2009). The Court can consider evidence outside the pleadings without
converting the motion into one for summary judgment. See, e.g., Evans, 166 F.3d at 647.
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). A complaint must allege enough facts to state a claim for relief that is
facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the
facts alleged must allow a court, drawing on judicial experience and common sense, to infer
more than the mere possibility of misconduct. Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 256 (4th Cir. 2009). The court “need not accept the plaintiff's legal
conclusions drawn from the facts, nor need it accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009) (internal alteration and citation omitted). Further, the Court may consider
documents which are attached to as well as documents integral to the complaint, so long as there
is no doubt of their authenticity, without converting the motion to one for summary judgment.
Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)
I. FTCA claims
Generally, the United States and its agents, acting within the scope of their official
government employment, enjoy sovereign immunity. United States v. Sherwood, 312 U.S. 584,
586 (1941). The Federal Tort Claims Act (FTCA) provides a limited waiver of sovereign
immunity, however, providing the exclusive remedy “for injury or loss of property . . . arising or
resulting from the negligent or wrongful act or omission of any employee of the [United States]
while acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). “The FTCA
bars claimants from bringing suit in federal court until they have exhausted their administrative
remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). This requirement is jurisdictional
and cannot be waived. Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). Because
the FTCA is a waiver of sovereign immunity, plaintiffs “must file an FTCA action in careful
compliance with its terms.” Kokotis v. U.S. Postal Service, 223 F.3d 275, 278 (4th Cir. 2000).
When a plaintiff brings a suit alleging that the federal government has committed a tort, the
Court lacks subject-matter jurisdiction unless the plaintiff has previously presented an
administrative claim and either received a written denial or received no final disposition within
six months of filing. 28 U.S.C. § 2675(a).
The FTCA further provides that “[a] tort claim shall be forever barred unless it is
presented in writing to the appropriate Federal agency within two years after such claim
acctues....” 28 U.S.C. § 2401(b). A tort claim accrues for purposes of the FTCA statute of
limitations when the plaintiff possesses “the critical facts that he has been hurt and who has
inflicted the injury.” United States v. Kubrick, 444 U.S. 111, 122 (1979). In support of their
argument, defendants cite to plaintiff's allegation that Wright sexually assaulted her in the staff
room in late 2016 or 2017, arguing that at the latest the assault would have occurred on
December 31, 2017, and because plaintiff did not initiate any FTCA administrative process until
January 16, 2020, her claims for assault, battery, and negligence are forever barred. See [DE 17].
Plaintiffs allegations are not limited to the sexual assault in the staff lounge in late 2016
or 2017. Rather, plaintiff has alleged that Wright’s unlawful behavior continued into 2018.
Plaintiff has alleged that following the sexual assault in the staff lounge Wright would frequently
engage in unwanted touching of plaintiff, culminating in Wright grabbing plaintiff's arm and
pulling her into his office in approximately July 2018. Plaintiff contends that she has sufficiently
alleged a continuing violation, which requires her to demonstrate that an “illegal act was a fixed
and continuing practice.” Greene v. U.S. Dep’t of Just., 606 F. App’x 77, 78 (4th Cir. 2015)
(citing A Soc’y Without A Name vy. Virginia, 655 F.3d 342, 348 (4th Cir.2011)). To constitute a
continuing violation, there must be repeated or “continual unlawful acts, not continual ill effects
from an original violation.” Jd. (quoting Nat’] Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1166
(4th Cir. 1991)).
Here, plaintiff has alleged more than isolated incidents, and the Court agrees that she has
sufficiently at this stage presented allegations of an ongoing or continuing practice. Compare
Fleming v. United States, 200 F. Supp. 3d 603, 610 (D. Md. 2016). Although defendants contend
that a continuing violation theory is typically endorsed in different contexts, defendants have not
cited to the Court any controlling precedent which would prevent plaintiff from proceeding
under a continuing violation theory in this context.
Additionally, as to plaintiff's negligence claim, plaintiff has alleged that she discovered
defendant’s negligence when in August 2019 she disclosed to a Special Investigative Agent that
she had been sexually assaulted and harassed by Wright and that the agent took no action,
including by failing to follow protocol which would have required plaintiff to be moved to a
different assignment where her alleged assailant was no longer her supervisor. [DE 1 § 76].
Plaintiff further alleges that after that meeting she wrote a memorandum in which she revealed
that she had been told not to report Wright’s harassment and requested that the Warden move her
to a different location. Her request for a transfer was denied on September 10, 2019. Id. { 77-
78. Thus, contrary to defendants’ assertion that, under Kubrick, plaintiff's negligence claim
would have accrued in 2016 or 2017 when she was assaulted in the staff lounge by Wright,
plaintiff has sufficiently alleged that she suffered an additional injury in September 2019 when it
was plain that defendants were aware of plaintiff's assault and Wright’s behavior and they failed
to take any action to investigate Wright or transfer plaintiff. On this record, taking the allegations
in plaintiff's complaint as true, the Court will not dismiss plaintiff's assault, battery, and
negligence claims as time-barred under the FTCA.
Nor does Title VII bar plaintiff's tort claims. In Brown vy. General Services
Administration, the Supreme Court held that Title VII “provides the exclusive judicial remedy
for claims of discrimination in federal employment.” 425 U.S. 820, 835 (1976). Since Brown,
however, a number of courts have recognized that torts of a highly personal nature that are
unrelated to discrimination but which arise from facts similar to a discrimination claim are not
preempted by Title VII. See Charlot v. Donley, No. CA 3:11-579-MBS-SVH, 2012 WL
3264568, at *4 (D.S.C. Aug. 9, 2012) (discussing cases and lack of Fourth Circuit precedent).
This Court is persuaded by the reasoning in Charlot and holds that under circumstances such as
this, where “the harms suffered involve something more than discrimination, the victim can
bring a separate claim.” Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995).
Defendants also contend that Wright’s conduct was outside the scope of his employment
and thus is not actionable under the FTCA. The Court has considered the arguments of the
parties and will not, at this stage, dismiss plaintiff's FTCA claims on this ground. “Because the
scope-of-employment issue is determinative of both jurisdiction and the underlying merits of an
FTCA claim, dismissal under Rule 12(b)(1) is inappropriate unless the jurisdictional allegations
are clearly immaterial or wholly unsubstantial and frivolous.” Kerns, 585 F.3d at 195. Plaintiff
has sufficiently alleged that defendants ratified Wright’s conduct, see Hogan v. Forsyth Country
Club Co., 79 N.C. App. 483, 491 (1986), and because “the jurisdictional facts are intertwined
with the facts central to the merits of the dispute” it is better to allow the parties to engage in
discovery prior to resolving defendants’ challenge on this ground. Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982).
The Court will, however, stay this action so that the Secretary of Labor can determine
whether the Federal Employees Compensation Act governs plaintiff's tort claims.
The government argues that plaintiff's FTCA tort claims are barred by the Federal
Employees Compensation Act (FECA), 5 U.S.C. §§ 8101-8193. Under the FECA, employees of
the United States shall be paid compensation “for the disability or death of an employee resulting
from personal injury sustained while in the performance of his duty.” 5 U.S.C. § 8102(a). The
FECA defines the term “injury” as “in addition to injury by accident, a disease proximately
caused by the employment, and damage to or destruction of medical braces, artificial limbs, and
other prosthetic devices .. ..” Jd § 8101(5). “In enacting this provision, Congress adopted the
principal compromise—the “quid pro quo”—commonly found in workers’ compensation
legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of
fault and without need for litigation, but in return they lose the right to sue the Government.”
Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 194 (1983).
A court may not grant relief to an employee of the United States whose claims are
covered by the FECA. Jd. It is the province of the Secretary of Labor to determine whether a
claim is covered by the FECA. See Aponte v. U.S. Dep’t of Treasury, Bureau of Alcohol,
Tobacco, & Firearms, 940 F. Supp. 898, 900 (E.D.N.C. 1996) (citing McDaniel v. United States,
970 F.2d 194, 196-97 (6th Cir.1992)). Plaintiff's tort claims are arguably within the scope of the
FECA. See Saltsman v. United States, 104 F.3d 787, 791 (6th Cir. 1997); Morris v. Potter, No.
1:04CV858, 2005 WL 5454330, at *4 (M.D.N.C. Sept. 30, 2005). Accordingly, and without
opposition from the government, the Court will permit plaintiff an opportunity to present her tort
claims to the Secretary of Labor for the Secretary to determine whether they are covered by the
FECA.
Il. Title VII claim
Title VII requires that a federal employee exhaust her administrative remedies prior to
filing suit in federal court. Zografov v. V.A. Med. Ctr., 779 F.2d 967, 968 (4th Cir. 1985). A
federal employee must contact an EEO Counselor within forty-five days of the alleged
discrimination prior to filing a complaint, and the EEOC must dismiss a complaint that fails to
comply with this requirement unless other circumstances apply. 29 C.F.R. §§ 1614.105(a)(1);
1614.107(a)(2).
Additionally, “[t]he scope of the Plaintiffs right to file a federal lawsuit is determined by
the [EEOC] charge’s contents.” Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
“Only those discrimination claims stated in the initial charge, those reasonably related to the
original complaint, and those developed by reasonable investigation of the original complaint
may be maintained in a subsequent Title VII lawsuit.” Jd. (quotation omitted). When a plaintiff's
complaint includes claims that “are broader than ‘the allegation of a discrete act or acts in [the]
administrative charge,’ they are procedurally barred.” Parker v. Reema Consulting Services, Inc.,
915 F.3d 297, 306 (4th Cir. 2019) (quoting Chacko v. Patuxent Inst., 429 F.3d 505, 508-10 (4th
Cir. 2005)).
Defendants argue that plaintiff's sole Title VII claim for retaliation is based on the fact
that she rebuffed Wright’s sexual advances and that as a result she was retaliated against by
certain lieutenants who were friends of Wright’s. Defendants argue that plaintiff did not disclose
that she was assaulted and harassed by Wright on February 12, 2019, when she contacted her
EEO Counselor, and that at no time did plaintiff disclose to the EEO Counselor why the
lieutenants were retaliating against her. Thus, defendants argue they were not on notice of
plaintiff's claims and did not have a chance to address plaintiff's claims in the first instance.
In Count III of her complaint, plaintiff asserts a claim for retaliation in violation of Title
VII, alleging that she
engaged in protected activity by opposing Captain Wright’s unwanted sexual
advances. Because of this protected activity, the Lieutenants named in paragraphs
22-28 engaged in retaliatory actions as described above that would dissuade a
reasonable person from engaging in protected activity. Subsequently, Plaintiff
again engaged in protected activity when she opposed the unlawful retaliatory
actions the Lieutenants subjected her to after she opposed Captain Wright’s
sexual harassment. The continued retaliatory actions Plaintiff experienced at the
hands of the Defendant would dissuade a reasonable person from engaging in
protected activity.
[DE 1 □ 102]. Plaintiff's complaint further alleges that she contacted her EEO Counselor on
February 12, 2019, that her supervising lieutenants disciplined plaintiff after she told them that
she was going to the EEO office, that the lieutenants told plaintiff that her discipline was based
upon her EEO contact, and that Wright warned plaintiff she should drop her EEO claims. □□□
62-66. Plaintiff thus contends that her Title VII claim is based upon the actions of the lieutenants
after she made contact with the EEO Counselor in February 2019. [DE 20 at 23].
In her EEO complaint of discrimination [DE 16] plaintiff details numerous instances of
discipline which she contends support her charge of reprisal, some of which occurred prior to
February 2019 and some of which occurred after. In the instant complaint, plaintiff makes clear
that her retaliation claim is based upon the actions of her supervising lieutenants after she told
them she would engage in the EEO process, Plaintiff's formal EEO complaint and its
attachments provide ample notice to defendants of plaintiff's claim of retaliation and are
reasonably related to plaintiff's retaliation claim alleged in this suit. See Sydnor v. Fairfax Cty.,
Va., 681 F.3d 591, 594 (4th Cir. 2012). Plaintiff's Title VII claim has been properly exhausted
and will not be dismissed.
III. Motion to seal
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Finally, defendants have moved to seal two attachments to their motion to dismiss, citing
certain personal identifying information contained therein. Plaintiff opposes the sealing of these
documents. The motion to seal is GRANTED but defendants are DIRECTED to file redacted
versions of the documents within ten (10) days of the date of entry of this order. Defendants may
further move to seal plaintiff's medical records by separate motion.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss [DE 14] is DENIED. This
action is hereby STAYED to permit plaintiff an opportunity to present her tort claims to the
Secretary of Labor. Plaintiff shall file a status report every sixty-days until the Secretary of Labor
has issued his opinion.
Defendants’ motion to seal [DE 18] is GRANTED but defendants are DIRECTED to file
redacted versions of the documents within ten (10) days of the date of entry of this order.
SO ORDERED, this Wf day of June, 2021.
TERRENCE W. sheers
UNITED STATES DISTRICT JUDGE
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