Nguyen v. Civil Air Patrol(MAG+)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TONY NGUYEN, )

)

Plaintiff, )

)

v. ) CASE NO. 2:20-CV-824-MHT-KFP

)

CIVIL AIR PATROL, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Pro se Plaintiff Tony Nguyen brings this action against the Civil Air Patrol, five

individually named defendants, and 10 fictitious defendants. Plaintiff brings numerous

claims, described this way in the caption of the Second Amended Complaint:

1/Violations on ADA Employments-Accomodations to Disabled Veteran.

2/Violations on Employments’s Retaliations.

3/Violations on Equal Employments-Equal Treatments Clause.

4/Violation to 42.USC 1983-Deprivation to Constitutional Rights.

5/Negligence in Failed to Train.

6/Intentional Infliction Emotion Distress.

[sic]

Doc. 22 at 1. In the body of the Second Amended Complaint, Nguyen also asserts

harassment in the nature of a hostile work environment. Id. at 7-8.

Although Nguyen names numerous defendants, only CAP has been served with the

Second Amended Complaint. CAP has moved, on a variety of grounds, to dismiss

Plaintiff’s Second Amended Complaint under Rule 12(b)(6). Doc. 24. For the reasons that

follow, the undersigned RECOMMENDS that CAP’s Motion to Dismiss be GRANTED

and this case be DISMISSED in its entirety.1

I. BACKGROUND

Nguyen initiated this action by filing an initial Complaint (Doc. 1) on October 13,

2020. On January 11, 2021, Nguyen filed an Amended Complaint (Doc. 3), which was

served only on CAP. CAP moved to dismiss the Amended Complaint for a variety of

reasons (Doc. 6), and Nguyen subsequently moved to again amend his pleading (Doc. 13).

The Court granted Nguyen leave to file a Second Amended Complaint. In its Order, the

Court identified many of the Amended Complaint’s pleading deficiencies, explaining that

it was a prohibited shotgun pleading and cautioning Nguyen that failure to cure the

deficiencies identified therein, as well as the deficiencies identified in CAP’s motion to

dismiss, would result in dismissal of the case. See Doc. 16. On May 18, 2021, Nguyen filed

his Second Amended Complaint. Doc. 22.

Although the Second Amended Complaint is largely incoherent, the following facts

can be extracted and must be accepted as true at this stage. Nguyen, who is Asian, is a

disabled veteran. Id. at 3. He identifies his national origin as Vietnamese. Id. at 11. “[H]e

1 Many of the bases for dismissal discussed herein are applicable to all the purported defendants, not just

CAP. Additionally, Nguyen has failed to effect service on any of the individually named defendants despite

the fact that this action has been pending for more than a year and the Second Amended Complaint was

filed more than five months ago. See Benkovitch v. Vill. of Key Biscayne, Fla., 778 F. App’x 711, 715 (11th

Cir. 2019) (noting that, when a plaintiff fails to serve process within 90 days after the complaint is filed, a

court may dismiss the case) (citing Fed. R. Civ. P. 4(m)). Finally, as to the fictitious defendants, “fictitious-

party pleading is generally not permitted in federal court” unless “the plaintiff’s description of the defendant

is so specific as to be at the very worst, surplusage.” Kabbaj v. John Does 1-10, 600 F. App’x 638, 641

(11th Cir. 2015) (quoting Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)). That is not the case

here; despite multiple opportunities to describe the fictitious defendants or more clearly identify the actions

allegedly taken by them, Nguyen has failed to do so. Accordingly, dismissal of the entire case is appropriate.

served in Civil Air Patrol -US Air Force as a part of his Military Duty ( under pending life

time contract with US AF and our Nation) and obligations to give back for the Country as

a Senior Officer in Legal , Information Technology and Aerospace [sic].” Id. at 4. In and

before November 2017, Nguyen complained about “the lack of ADA assistance to Disabled

Veterans includ[ing Nguyen].” Id. From November 2017 through January 2018,

individually named Defendants Alan Ferguson, Craig Newton, and Gregory Jurek would

tell Nguyen that he “[did not] qualify to apply for higher level of positions of CAP because

[he had a] Vietnamese accent, [was] over 40 years, had military disability and . . . requested

reasonable accommodation due to [his] disability.” Id. at 7. “Craig Newton would call

[Nguyen] ‘Vietnamese Fu**ing’ and would say [his] accent cannot show [his] educations

and [Nguyen] should not wear name tag on [his] CAP uniform.” Id. Nguyen alleges verbal

interactions like this “occurred on [a] weekly basis.” Id. Additionally, Nguyen alleges that

“Gregory Jurek would say [he] had [a] Vietnamese accent and I cannot understand, [and

Jurek] would translate for [Nguyen] and would say [Nguyen] don’t have any Medical

disability [and his] restrictions do not need to be accommodated [sic].” Id. at 7-8.

In or around June 2017 “and onward,” Nguyen requested reasonable

accommodations for a disability, but he was not accommodated. Id. at 8. Before November

2017, Nguyen applied to be a “Senior Inspector general (IG-05 rank) with CAP-USAF.”

Id. at 8. In November 2017, apparently during a meeting, Nguyen, who was wearing some

type of “medical support devices and other accommodations” was forced to remove the

accommodations to wear the CAP uniform when Alan Ferguson-Newton said, “There was

an ASIAN here ( only me ) do not know to wear CAP Uniform’ and he should not wear

his name tag because disqualified and cannot be PROMOTED TO 06 Level of CAP

leadership.” Id. at 11. Nguyen filed an EEOC charge and received a right to sue letter on

July 11, 2020 “and before.” Id. at 5. Additionally, Nguyen asserts that:

• “The USAF members can have credits from serving to CAP as a part of retirement

credit programs . . . . Nguyen . . . was working for [CAP] for his US Air Force

Retired Credits Programs as well he is serving in many Federal or Federal Military

Forces[.]” Id. at 4.

• Nguyen “WAS SUBJECTED TO change Status of Volunteering Employments On

or around January 10, 2018, Alan Ferguson, Supervisor alleged [he] was

disqualified for promotions to higher Senior Positions at CAP [sic].” Id. at 9.

On June 15, 2020, Nguyen alleges that something happened, although precisely

what is unclear:

I sent message and called them(CAP) to resinstate me as the promotion of

My Selected Positions as an 05 on CAP-USAF , they also ignore and prevent

me to join against My orginal position works at CAP/USAF from Racial and

Military Discrimination. They told me : “ You are disqualified from We

cannot believe with your VN accent and Disabilities, you can have a unique

HARVARD education like that .Your complaints to USDOJ -EEOC made

us embarrassed .Go ahead to sue us “ and hand it up. (My email to them:

06/15/2020: All: Please see again Tony Nguyen Application to have new

Position at CAP_USAF -AEM and Please reinstate him again to his selected

position in IT, AEM, IG team as an 05 of CAP-USAF as EEOC and USAF

advice. Please send the denial or approval before we can process Federal

Lawsuit against Civil Air Patrol on many kinds of Discriminations.) [sic].

Id. at 10-11. Finally, sometime between January 2018 and July 2020, “Alan Ferguson,

Supervisor” told Nguyen that he “was disqualified to be promoted [to a] higher Position[.]”

Id. at 10.

Critically, it is unclear from the Second Amended Complaint whether Nguyen was

a volunteer or employee of CAP or whether he had some other status with CAP. It is equally

unclear when the relationship, whatever it was, began and if or when it ceased.

II. LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). While detailed factual allegations are not required, a plaintiff must present “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements

of a cause of action will not do.’” Id. “Nor does a complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at

557).

To survive a motion to dismiss for failure to state a claim, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. (quoting Twombly, 550 U.S. 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. (citing Twombly, 550 U.S. at 556).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555 (noting that, although a

court must accept all factual allegations in a complaint as true at the motion to dismiss

stage, it need not “accept as true a legal conclusion couched as a factual allegation”)).

III. DISCUSSION

A. Plaintiff’s Second Amended Complaint Remains an Impermissible

Shotgun Pleading.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint

contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” In addition, Rule 10(b) requires a plaintiff to state his claims “in numbered

paragraphs, each limited as far as practicable to a single set of circumstances.” The

Eleventh Circuit has described shotgun pleadings as follows:

Though the groupings cannot be too finely drawn, we have identified four

rough types or categories of shotgun pleadings. The most common type—

by a long shot—is a complaint containing multiple counts where each

count adopts the allegations of all preceding counts, causing each

successive count to carry all that came before and the last count to be a

combination of the entire complaint. The next most common type . . . is

a complaint that does not commit the mortal sin of re-alleging all

preceding counts but is guilty of the venial sin of being replete with

conclusory, vague, and immaterial facts not obviously connected to any

particular cause of action. The third type of shotgun pleading is one that

commits the sin of not separating into a different count each cause of action

or claim for relief. Fourth, and finally, there is the relatively rare sin of

asserting multiple claims against multiple defendants without specifying

which of the defendants are responsible for which acts or omissions, or

which of the defendants the claim is brought against. The unifying

characteristic of all types of shotgun pleadings is that they fail to one degree

or another, and in one way or another, to give the defendants adequate notice

of the claims against them and the grounds upon which each claim rests.

Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321–23 (11th Cir. 2015)

(emphasis added); accord Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021)

(“Shotgun pleadings are flatly forbidden by the spirit, if not the letter, of [the Federal Rules]

because they are calculated to confuse the enemy, and the court, so that theories for relief

not provided by law and which can prejudice an opponent’s case, especially before the

jury, can be masked.[] Besides violating the rules, shotgun pleadings also waste scarce

judicial resources, inexorably broaden the scope of discovery, wreak havoc on appellate

court dockets, and undermine the public’s respect for the courts. We have little tolerance

for them.”) (internal quotation marks and citations omitted).

Like his previous pleading, Nguyen’s Second Amended Complaint squarely meets

the first two criteria above. The pleading is also the fourth type of prohibited shotgun

pleading, as there are few factual allegations as to each Defendant’s conduct included in

the Second Amended Complaint. The majority of the allegations are, instead, incoherent

and conclusory statements that are copied and pasted multiple times throughout the

pleading. Many allegations string together disjointed statements, which makes discerning

the factual basis potentially imbedded therein a nearly impossible task. For instance,

Nguyen asserts:

On 01/2018 until 07/2020 ,As my ADA Assistance Complaints to

Leaderships levels of CAP-USAF on lack of ADA assistance to Disabled

Veterans included Tony Nguyen , Plaintiff Tony Nguyen received the letters

included verbally response from CAP Personnels that : You disqualified

because you complained us on lack of ADA assistance and othe matters to

USAF -IG , US DOJ and US Congress , let us change your status of

CAP_USAF Volunteer/Military Credited Employee with CAP-USAF and

you are forced to change to other status with CAP-USAF from you are also

disqualify in IT -other Components because over 40 years old and can not

promoted to Leadership level here(CAP_USAF) [sic].

Doc. 22 at 5, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 21, 23.2 It is unclear whether Nguyen

contends he was a compensated employee of CAP, was a volunteer, or had some other

2 Nguyen has copied and pasted this exact same allegation on at least 14 pages throughout his pleading. As

noted above, he does this with many of his allegations.

engagement with CAP.3 It appears Nguyen claims he was prohibited from being promoted

to some unidentified “Leadership level” position, but it is unclear whether he applied for

the promotion or otherwise sought the promotion, when he actually did so, and whether he

was qualified for the promotion sought. It is also unclear if he contends that someone

outside his protected class(es) was promoted or hired into the position at issue. He does

allege that sometime before November 2017, he “was applying to be Senior Inspector

general (IG-05 rank) with CAP-USAF and approved by CAP-USAF Supervisor Jones in

promotion become a Senior Inpector General Officer and Commander of Aerospace

Division of CAP-USAF with rank 05 (L.Colonel) after [he] completed Seninor Officers

Training Programs and Leadership Program at CAP_USAF [sic].” Doc. 22 at 4, 7, 8, 9, 10,

13, 14, 15, 16, 17, 18, 20, 22. However, whether the Senior Inspector position is the

specified “leadership” promotion Nguyen wanted is not clear.

During that same time period, Nguyen alleges he was informed that “they can not

trust Plaintiff study HARVARD and President of HARVARD Alumni of USAF with such

Vietnamese English accent.”4 Doc. 22 at 5, 8, 9, 10, 13, 14, 15, 16, 18, 19, 21, 23. And,

repeatedly, Nguyen asserts seemingly immaterial facts such as that he is “President of the

Harvard Alumni of US Air Force as an honor Harvard Alumnus” and that he has “Harvard

Post Doc-JD-LLM,M.Eng,M.Arch,MBA studied at Universities included HARVARD

with many honor scholarships from over 08 Degrees from Bachelors to Doctorate [sic].”

3 In his opposition to the Motion to Dismiss, Nguyen asserts that he “is employed partime with CAP_USAF

as a Pending Contract with US Air Force . Also , he volunteered to support CAP and USAF . . . [sic].” Doc.

26 at 5.

4 It is unclear to whom “they” refers or who, specifically, said this to Nguyen.

See, e.g., Doc. 22 at 3. As best it can be interpreted, Nguyen apparently alleges that some

unidentified person(s) at some point(s) in time claimed to be unable to trust his Harvard

education because of his “Vietnamese English accent.” These are just a few examples of

the difficulties presented in interpreting the factual basis for Nguyen’s claims—a problem

that plagues his entire pleading.

This lack of factual clarity precludes a finding of plausibility as to any claim. For

example, Nguyen’s pleading incorporates in each count all prior allegations, copies and

pastes into each count many prior allegations, and seemingly dumps in other text copied

from external sources. See McCall v. Bank of Am., N.A., No. 2:16-CV-184, 2016 WL

5402748, at *2 (M.D. Ala. Sept. 26, 2016) (“It is not enough to clearly incorporate all facts

pleaded in the . . . complaint . . . as Plaintiff has done; rather, the supporting facts must be

pleaded in the count asserting the cause of action.”) (citing Wagner v. First Horizon Pharm.

Corp., 464 F.3d 1273, 1280 (11th Cir. 2006)). The pleading is difficult to follow and

wrought with missing factual links that prevent the Second Amended Complaint from

giving any of the Defendants adequate notice of the claims against them and, in particular,

the grounds on which each of those claims rest. See Barmapov, 986 F.3d at 1324 (“The

‘self-evident’ purpose of [the Federal Rules] is ‘to require the pleader to present his claims

discretely and succinctly, so that[] his adversary can discern what he is claiming and frame

a responsive pleading.’[] These rules were also written for the benefit of the court, which

must be able to determine ‘which facts support which claims,’ ‘whether the plaintiff has

stated any claims upon which relief can be granted,’ and whether evidence introduced at

trial is relevant.”) (citations omitted).

Not even the leniency due a pro se litigant can salvage a failure to adequately plead,

especially here on the third attempt. See Jones v. Fla. Parole Comm’n, 787 F.3d 1105,

1107 (11th Cir. 2015) (“A pro se pleading is held to a less stringent standard than a pleading

drafted by an attorney; a pro se pleading is liberally construed.”). “While pro se pleadings

are held to less stringent standards than those drafted by attorneys, they still must suggest

some factual basis for a claim.” KPOKYC v. President, 858 F. App’x 289, 291 (11th Cir.

2021) (affirming dismissal of pro se pleading where the “‘complaint constituted a shotgun

pleading because it was ‘replete with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action.’”) (quoting Weiland, 792 F.3d at 1322); Bell

v. J.B. Hunt Transp., Inc., 427 F. App’x 705, 708 (11th Cir. 2011) (“[T]he obligation to

liberally construe a pro se pleading is not the equivalent of a duty to re-write it for the

plaintiff.”). The Second Amended Complaint is an exemplar shotgun complaint that

requires dismissal at this time.

The closest Nguyen comes to stating a claim is what appears to be his harassment

hostile work environment claim, but even it fails to assert sufficient factual clarity to move

the claim forward. McCray v. Auburn Univ. Montgomery, No. 2:11-CV-714-WHA, 2011

WL 6140993, at *2 (M.D. Ala. Dec. 8, 2011) (“[T]o plead a hostile work environment

claim the plaintiff is ‘required to allege that: (1) he belongs to a protected group; (2) he was

subjected to unwelcome harassment; (3) the harassment was based on his membership in

the protected group; (4) it was severe or pervasive enough to alter the terms and conditions

of employment and create a hostile or abusive working environment; and (5) the employer

is responsible for that environment under a theory of either vicarious or direct liability.’”)

(quoting Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010)). While a plaintiff

is not required to plead every fact of a prima facie case, he must, at a minimum, assert facts

demonstrating the material elements are plausible. See Evans v. Ga. Reg’l Hosp., 850 F.3d

1248, 1253 (11th Cir. 2017) (“A Title VII complaint need not allege facts sufficient to

make out a classic prima facie case, but must simply provide enough factual matter to

plausibly suggest intentional discrimination.”); see also Some v. Honda Mfg. of Ala., LLC,

No. 2:18-CV-2120-TMP, 2019 WL 1466240, at *5 (N.D. Ala. Apr. 3, 2019) (“Although

at the Rule 12 dismissal stage the plaintiff need not specifically plead every element of her

claim, the complaint must contain direct or inferential allegations respecting all the material

elements necessary to sustain a recovery.”) (citing Roe v. Aware Woman Ctr. for Choice,

Inc., 253 F.3d 678, 683 (11th Cir. 2001)).

To establish a hostile work environment claim, a plaintiff must show that “the

workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (citations omitted). Nguyen’s conclusory allegations that he was discriminated

against, harassed, retaliated against, and not given due process and the like are mere legal

conclusions that the Court must ignore on a motion to dismiss. When those legal

conclusions are excluded, the remaining factual allegations fail to nudge the mostly

indecipherable claims forward. See Iqbal, 556 U.S. at 679.

Nguyen alleges that, from November 16, 2017 to January 2018, he faced some

variety of weekly verbal harassment “on the basis of age, ancestry (Vietnam), disability,

military and veteran status, national origin (Vietnam) and race (Asian).” Doc. 22 at 7.

However, the only examples he provides lack specificity. Nguyen alleges that, at some

unidentified time, he was told he did not qualify for “positions” because he has a

Vietnamese accent, is over 40 years old, has a military disability, and requested a

reasonable accommodation, and he further alleges he was called a “Vietnamese Fu**ing.”

Id.

Taken together, these statements are at best examples of sporadic insults. Albeit

cruel and not appropriate in the workplace (assuming Nguyen actually worked there), the

allegations are not sufficient to assert a plausible claim that the environment was permeated

with harassment—harassment that was severe or pervasive enough to state a claim. See,

e.g., Guthrie v. Waffle House, Inc., 460 F. App’x 803, 807 (11th Cir. 2012) (holding dozens

of derogatory comments over an eleven-month period insufficiently severe and pervasive);

Washington v. Util. Trailer Mfg. Co., No. 1:13-CV-610-WEF, 2014 WL 2831189, at *5

(M.D. Ala. June 23, 2014) (“The Court cannot evaluate the plausibility of Plaintiffs’ racial

harassment claim based on the [applicable] standards . . . until, as requested by this Court

repeatedly now, Plaintiffs give examples of when the statements are alleged to have been

made, or by whom, or to whom, or where and approximately how frequently and over what

time period.”) (internal quotations and citations omitted); see also Corbett v. Beseler, 635

F. App’x 809, 816 (11th Cir. 2015) (“Title VII is not a general civility code; ordinary

tribulations of the workplace . . . cannot form the basis of a claim for actionable harassment

or hostile work environment. Instead, conduct must be extreme to amount to a change in

terms and conditions of employment. Title VII is not a shield against harsh treatment in the

workplace; personal animosity is not the equivalent of discrimination.”) (internal

quotations and citations omitted).

Additionally, the Court notes that Nguyen appears to be quite familiar with the

judicial system, and several other courts have declared Nguyen a vexatious litigant. In one

of his incoherent narratives in opposition to the motion to dismiss, Nguyen asserts that he

is “on Medical Leave from Medical treatments caused from Attempted Murder , Abuse of

Process of a Criminal Gang was backed up by Iran and Vietnamese Communist

Governments. See Nguyen vs. Iran Islamic Republic et al -1:21-00267-Washington DC

US District Court) [sic].” Doc. 26 at 7 (emphasis in original). In this suit, styled Nguyen

v. Islamic Republic of Iran and filed in the District of Columbia in January 2021, Nguyen

brought suit against eleven named defendants and ten unknown defendants, alleging they

were a “big criminal gang” acting in collusion to threaten, harass, and attempt to murder

him, his parents, his family, “his God Parents,” and an unnamed disabled veteran referred

to only as John Doe. Case No. 1:21-CV-267-RCL (D.C.), Docs. 1, 6. The D.C. court sua

sponte dismissed the action without prejudice, calling the pleading “nonsensical” and

“utterly incoherent.” Id., Doc. 6.

Also, in January 2021, Plaintiff filed a seemingly identical complaint in the District

of Nevada against the same defendants. Case No. 2:21-CV-134-GMN-NJK, Doc. 1. The

Nevada court described Plaintiff’s allegations as “a delusional, sweeping conspiracy” that

were “frivolous and nonsensical.” Id., Doc. 118 at 8. The Nevada court further determined

that Nguyen had filed at least 42 prior—and often duplicative—cases, removals, and

appeals against the same defendants, all arising from similar frivolous claims, and noted

that two other courts had already deemed him a vexatious litigant and imposed prefiling

injunctions against him.5 Id. at 8-10. The court further recognized Nguyen’s “willingness

to circumvent” those prefiling injunctions by continuing to file similar cases under

pseudonyms and anonymously as “John Doe,” making the actual number of prior cases

filed by Nguyen difficult to discern. Id. at 10. Thus, the Nevada court also held Nguyen to

be a vexatious litigant and prohibited him from filing certain future lawsuits. Id. at 11.

Nguyen’s extensive, frivolous litigation history makes his failure to follow the

pleading rules, and this Court’s order giving him instructions about curing the deficiencies

of his last pleading, all the more troubling and intolerable. Therefore, the Second Amended

Complaint should be DISMISSED and no further leave to cure should be allowed.

B. Plaintiff’s Claims are Untimely: Claims under Title VII, the ADA, and the

ADEA Were Not Filed Within 90 Days.

While this lawsuit is subject to dismissal based solely upon the foregoing, the

undersigned makes a few additional points that further support dismissal of Nguyen’s

Second Amended Complaint. First, even if Nguyen plausibly asserted discrimination,

harassment, or retaliation claims under Title VII, the ADA, and the ADEA, those claims

should nevertheless be dismissed. These statutes provide that a plaintiff must bring a civil

action within 90 days after receiving a right to sue notice from the EEOC. See 42 U.S.C.

§ 2000e-5(f)(1) (setting 90-day deadline for Title VII cases); 42 U.S.C. § 12117(a)

(providing that the ADA incorporates the procedural provisions of Title VII, including

5 A vexatious litigant list prepared and maintained by the Judicial Council of California identifies “Anthony

Nguyen,” “aka Tony Nguyen,” as a vexatious litigant from whom the California courts have prohibited

future filings though October 1, 2021.

filing within 90 days after receiving a right to sue); 29 U.S.C. § 626(e) (setting 90-day

deadline for ADEA cases).6

Based on the Second Amended Complaint’s factual allegations, Nguyen received

his right to sue letter no later than July 11, 2020.7 Doc. 22 at 5. In fact, he alleges he

received it on that date “and before.” Id. As CAP points out in its motion, Nguyen filed

this lawsuit on October 13, 2020, more than 90 days after July 11, 2020. See Green v.

Union Foundry Co., 281 F.3d 1229, 1233-34 (11th Cir. 2002) (affirming dismissal where

claimant failed to initiate suit until 97 days after the EEOC mailed right to sue notice);

Norris v. Fla. Dep’t of Health and Rehab. Servs., 730 F.2d 682, 682 (11th Cir. 1984)

(affirming dismissal of suit filed 91 days after receipt of right to sue notice).

“Once the defendant contests this issue, the plaintiff has the burden of establishing

that he met the ninety day filing requirement.” Green, 281 F.3d at 1234 (citing Jackson v.

Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir. 1982)). Nguyen, however, fails

to provide any argument or rebuttal to what must be deduced from the facts he has alleged:

these claims (assuming plausible claims are even asserted) are untimely because they were

filed more than 90 days after he received the EEOC’s right to sue letter. He also provides

no facts whatsoever to support equitable tolling of the 90-day requirement. See Baldwin

6 See also Strickland v. Wayne Farms–Southland Hatchery, 132 F. Supp. 2d 1331, 1332 (M.D. Ala. 2001);

Green v. Union Foundry Co., 281 F.3d 1229, 1233-4 (11th Cir. 2002) (citing Santini v. Cleveland Clinic

Fla., 232 F.3d 823, 825 (11th Cir. 2000)); Kerr v. McDonald’s Corp., 333 F. Supp. 2d 1352, 1358 (N.D.

Ga. 2004) (“[F]iling an action within 90 days of receipt of a notice of right to sue from the EEOC is a

condition precedent to bringing an action under [Title VII].”); 29 U.S.C. § 626(d)(1) (stating that no ADEA

civil action may be commenced unless an EEOC charge has been filed).

7 Plaintiff attached the Notice of Right to Sue with his initial complaint, which is dated July 10, 2020. See

Doc. 1 at 11.

Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Procedural requirements

established by Congress for gaining access to the federal courts are not to be disregarded

by courts out of a vague sympathy for particular litigants.”). Accordingly, these claims

should be DISMISSED.8

C. Plaintiff’s State Law Claims Should be Dismissed for Failure to State a

Claim.

1. Plaintiff’s Allegations Do Not Support an Outrage Claim

A claim for the tort of outrage under Alabama law requires a plaintiff to

“‘demonstrate that the defendant’s conduct (1) was intentional or reckless; (2) was extreme

and outrageous; and (3) caused emotional distress so severe that no reasonable person could

be expected to endure it.’” Washington v. Util. Trailer Mfg. Co., No. 1:13-CV-610-WKW,

2014 WL 7148864, at *3 (M.D. Ala. Dec. 15, 2014) (quoting Little v. Robinson, 72 So. 3d

1168, 1172 (Ala. 2011) (internal quotation marks omitted)); see also Little, 72 So. 3d at

1172 (discussing three limited types of conduct held actionable under the tort of outrage,

as set out in Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000)). “To be sure, in Alabama,

the tort of ‘outrage is a very limited cause of action that is available only in the most

egregious circumstances.’” Id. (quoting Thomas v. BSE Indus. Contractors, Inc., 624 So.

2d 1041, 1044 (Ala. 1993) (noting that the Alabama Supreme Court “has held in a large

8 CAP further argues that the EEOC Charge did not administratively exhaust all the claims asserted in this

lawsuit, and that may be true. Nguyen’s EEOC Charge is similarly difficult to follow. See Doc. 6, Ex. A.

Nevertheless, even assuming plausible claims are asserted here and that the charge encompassed the

allegations intended in this lawsuit as the basis for Nguyen’s claims for discrimination based on age,

disability, race, national origin, harassment, and retaliation, the lawsuit was not timely filed as explained

herein.

majority of the outrage cases reviewed that no jury question was presented” and citing 19

cases in support)). Indeed, “the Supreme Court of Alabama has taken special care to

accentuate the extreme nature of the tort of outrage.” McCreight v. AuburnBank, No. 2:19-

CV-865-ALB, 2020 WL 1061675, at *3 (M.D. Ala. Mar. 4, 2020) (citing Gibbs v. Aetna

Cas. & Sur. Co., 604 So. 2d 414, 415 (Ala. 1992) (holding that Cont’l Cas. Ins. Co. v.

McDonald, 567 So. 2d 1208, 1209 (Ala. 1990), a case in which a company cruelly and

intentionally withheld payment for pain treatment they knew they owed in an attempt to

press a nominal settlement, “has come to represent the minimum threshold that a defendant

must cross in order to commit outrageous conduct”)).

While the application is narrow, the Alabama Supreme Court has observed that the

limitation “is not to say . . . that the tort of outrage is viable in only the three circumstances

noted in Potts.” Little, 72 So. 3d at 1172–73 (observing that it recently affirmed a judgment

on a tort-of-outrage claim in a fourth situation). However, the grounds Nguyen has

asserted—consisting primarily of Nguyen’s mostly vague and largely garden-variety

allegations that he was subjected to some form of discrimination and/or harassment during

his volunteering and/or employment—are simply not the kind so egregious that might

nudge his outrage claim to the next stage of litigation. Compare Washington, 2014 WL

7148864, at *3 (denying motion to dismiss plaintiff’s “alleged facts, taken as true at this

juncture, that portray a workplace replete with racial discrimination, harassment, and

hostility,” where allegations included numerous racial slurs such as “black a—,”

“monkey,” “boy,” “dirty a—n–––––,” or “black a—mother–––––” and racially charged

graffiti inscribed on the walls, beams, and bathroom stalls, including the letters “KKK,”

drawings of a noose, the word “n–––––,” and references to the “Brotherhood”) with

McCreight, 2020 WL 1061675, at *3 (dismissing outrage claim where plaintiffs’

allegations were no “more than garden variety workplace discrimination” claims alleging

“patterns of discriminatory conduct in the work place” and noting that, while Plaintiff

McCreight was repeatedly told that the bank was only interested in hiring young people

and Plaintiff Wester was repeatedly called “slow,” their terminations, “while they may

have been dramatic, [did not] rise to the level of . . . truly shocking and outrageous

conduct”). Thus, Plaintiff’s purported outrage claim should be DISMISSED.

2. Because There is No Actionable Underlying Tort, Plaintiff Cannot Move

Forward on a Negligent Training Claim

Nguyen appears to assert a claim for negligent training. Setting aside the fatal

factual dearth supporting the claim, the claim cannot be supported by the alleged federal

causes of action. As this Court noted in Guy v. Alabama Power Co., No. 2:13CV8-MHT,

2013 WL 3929858, at *2 (M.D. Ala. July 29, 2013):

[The] wrongdoing must be based on state, and not federal, law. Otherwise,

the tort of negligent or wanton hiring, training, and supervision could be a

corridor through which federal laws prohibiting various types of conduct by

employees could be incorporated into state law as a privately redressable

requirement on employers to stop their employees from engaging in such

conduct.

Indeed, as the Guy court noted, “it appears that all Alabama federal courts that have

considered the issue have consistently interpreted state law as requiring that the [alleged]

wrongdoing be based on ‘a common-law, Alabama tort . . ., [and] not on a federal cause of

action.’” Id. at *3 (quoting Short v. Mando Am. Corp., 805 F. Supp. 2d 1246, 1277 (M.D.

Ala. 2011)).9 Thus, without an underlying state tort, of which there is none, Plaintiff’s

purported negligent training claim should be DISMISSED.

D. Plaintiff Fails to State a Viable Due Process or § 1983 Claim.

After copying and pasting numerous incoherent narrative statements throughout the

Second Amended Complaint, Nguyen asserts this for his due process claim:

On or before 06/15/2020, Civil Air Patrol or its Staff failed to have any

proper hearing , meetings explanations on Tony Nguyen ’s Changing

Employment or Denial of Promotions on his over qualified capacities with

accommodation .It is shown their misconducts from Discrimnations ,

Defamation /Retaliations and Violations to DUE PROCESS as one of

Constitutional Rights that Plaintiff NGUYEN must be entitled .Also,

Plaintiff was victimized by Defamatory/Retaliations as CAP made up many

fake reasons to mistreat Plaintiff as Federal Government ’s Proper

Complaints . When Nguyen complained to US Department of Justice , EEOC

, US Air Force , Congress members ,etc Civil Air Patrol made up or changed

many fake stories to harm NGUYEN ’s reputation .[] As a direct result of the

aforesaid unlawful retaliatory employment practices engaged in by the

Defendant in violation of the DUE PROCESS Clause [sic].

Doc. 22 at 19.

For his § 1983 claim, it appears Nguyen has simply copied and pasted a caselaw

summary, reasserted all the other paragraphs of the pleading along with additional

disjointed statements, and asserted, “Besides, CAP was acting with Tony Nguyen as a

Federal Government agency under color of his duty with USAF and also his USAF Credit

9 See also Williams v. Daiichi Sankyo, Inc., No. 2:11-CV-3629, 2012 WL 3627765, at *3 (N.D. Ala. Aug.

21, 2012) (“The plaintiff must allege underlying wrongful conduct that is an Alabama common law tort to

support a claim of wanton supervision.”); Evans v. Mobile Infirmary Med. Ctr., No. CIV.A.04-0364, 2005

WL 1840235, at *17 (S.D. Ala. Aug. 2, 2005) (“[T]he Alabama Supreme Court has held that a plaintiff is

required to prove an underlying common-law tort in order to prevail in a claim for negligent supervision,

training or retention.”)); Kurtts v. Chiropractic Strategies Grp., Inc., 481 F. App’x 462, 469 (11th Cir.

2012) (in cases without evidence that a tort was committed, “the Alabama Supreme Court has explained

that an employer may not be held directly liable on a theory of negligent supervision or training because no

[underlying] tort occurred.”).

Retired works , IT IS Considered CAP was depriving Civil Rights ( ADA Assistance and

DUE PROCESS clauses ) in his Employments of his CAP timing [sic].” Id. at 20.

Neither of these incomprehensible counts states a claim that can move forward in

litigation, and they should thus be DISMISSED.

IV. CONCLUSION10

Accordingly, for the reasons set forth above, the Magistrate Judge RECOMMENDS

that Defendant Civil Air Patrol’s Motion to Dismiss (Doc. 24) be GRANTED and this case

be DISMISSED.

It is further

ORDERED that on or before November 17, 2021, the parties may file objections

to the Recommendation. The parties must specifically identify the factual findings and

legal conclusions in the Recommendation to which objection is made. Frivolous,

conclusive, or general objections will not be considered by the Court. The parties are

advised that this Recommendation is not a final order and, therefore, is not appealable.

Failure to file written objections to the Magistrate Judge’s findings and recommendations

in accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo determination by

the District Court of legal and factual issues covered in the Recommendation and waive

the right of the party to challenge on appeal the District Court’s order based on unobjected-

to factual and legal conclusions accepted or adopted by the District Court except on

10 In its motion, CAP raises additional grounds for dismissal, including arguing that volunteers like Nguyen

have no right of action under Title VII, the ADA, or the ADEA. These and other arguments CAP asserts as

grounds for dismissal are pretermitted based on the undersigned’s conclusion that the Second Amended

Complaint is otherwise due to be dismissed.

grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

1982); 11th Cir. R. 3-1. See Stein v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir. 1982); see

also Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (en banc).

DONE this 3rd day of November, 2021.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE