DAVIS v. DEJOY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LATRILLIAN DAVIS, )

)

Plaintiff, )

)

v. )

) 1:23-CV-773

LOUIS DEJOY, in his official )

capacity as Postmaster )

General; DEBORAH MERRYMAN in )

her individual capacity and in )

her official capacity as Acting )

Supervisor, U.S. Postal )

Service; KIMBERLY LEVENSON, in )

her individual capacity and in )

her official capacity as Acting )

Manager, U.S. Postal Service; )

and DESIREE MANNING, in her )

individual capacity and in her )

official capacity as Executive )

Manager, U.S. Postal Service, )

)

Defendants. )

MEMORANDUM ORDER

THOMAS D. SCHROEDER, District Judge.

This is an employment discrimination action against the

United States Postal Service (“USPS”). Before the court is the

partial motion to dismiss the amended complaint by all Defendants.

(Doc. 12.) Plaintiff LaTrillian Davis has responded in opposition

(Doc. 15), and Defendants have replied. (Doc. 17.) For the

reasons set forth below, the motion to dismiss will be granted to

the extent set out below.

I. BACKGROUND

The facts alleged in the amended complaint (Doc. 4), which

the court accepts as true for the purpose of the motion to dismiss,

show the following:

Davis is a resident of Stanly County, North Carolina, and was

employed as a USPS Personnel Processing Specialist at the Human

Resources Shared Service Center in Greensboro, North Carolina.

(Id. ¶ 6.) She is African American. (Id. ¶ 1.) Defendants are

employees of USPS. Louis Dejoy is the Postmaster General of the

United States and is sued in his official capacity only. (Id.

¶ 7.) Deborah Merryman is a citizen of North Carolina and was

Davis’s acting supervisor at USPS. (Id. ¶ 8.) Kimberly Levenson

is a citizen of North Carolina and was Davis’s acting manager at

USPS. (Id. ¶ 9.) Desiree Manning is a citizen of North Carolina

and was Davis’s executive manager at USPS. (Id. ¶ 10.) Merryman,

Levenson, and Manning are each sued in their official and

individual capacities; they are hereinafter referred to as

“Individual Defendants.”

Davis was a temporary employee of USPS for seventeen years.

(Id. ¶ 14.) She was “provided the most complicated work and the

least support.” (Id. ¶ 29.) She applied for a career position in

October 2021 and interviewed for the position in January 2022.

(Id. ¶ 17.) After she told Individual Defendants of her interview,

they told her that “she would never be career” and that she was

“unintelligent”; they also “questioned whether any employer would

want her.” (Id. ¶ 19.) From that point, Individual Defendants

began to “strip away [Davis’s] ability to work remotely” and did

not permit her to work remotely while her children were sick with

COVID unless she obtained “reliable childcare.” (Id. ¶ 20.) In

February 2022, Davis requested overtime but was told that she was

ineligible because she had not been trained on a new system. (Id.

¶ 21.) She requested but was subsequently denied training on the

new system. (Id.)

On February 7, 2022, Davis’s daughter had a miscarriage, and

Merryman told Davis that if she wished to take an extended lunch

to be with her daughter in the hospital, she would have to work an

extended day. (Id. ¶ 24.) On February 9, 2022, Merryman told

Davis that she “needed to account for her work from December 18,

2021, to February 2022.” (Id. ¶ 26.)1 The following day, Merryman

and Levenson met with Davis and questioned her productivity, told

her that she was not “career position material,” and advised that

they would speak to Manning to “determine if she would be

terminated effective immediately.” (Id. ¶ 28.) At the end of the

meeting, Davis was advised she would work on a “day-to-day basis”

and was given a chart that explained how many actions she was to

complete each day. (Id. ¶ 30.)

The following two business days, Davis “completed everything

that was required of her.” (Id. ¶ 34.) On February 15, 2022,

1 The complaint is silent as to the context for this allegation.

Individual Defendants terminated her employment. (Id. ¶ 35.)

Following the termination, a white woman was allegedly promoted to

the job for which Davis had applied. (Id. ¶ 37.) During her

employment, she lodged complaints based on race and gender. (Id.

¶ 29.)

Davis now pleads ten counts seeking relief: (1) disparate

treatment/impact under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq.; (2) disparate treatment/impact under 42

U.S.C. §§ 1981, 1983; (3) hostile work environment under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (4)

hostile work environment under 42 U.S.C. §§ 1981, 1983; (5)

retaliation under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq.; (6) retaliation under 42 U.S.C. §§ 1981,

1983; (7) conspiracy to discriminate under 42 U.S.C. §§ 1983, 1985,

1986; (8) negligent retention and negligent supervision; (9)

interference and retaliation under the Family and Medical Leave

Act of 1993 (FMLA); and (10) punitive damages. (Id. ¶¶ 39-98.)

She seeks compensatory damages, punitive damages, and attorney’s

fees. (Id. at 15.)

Defendants moved to dismiss counts two, four, six, seven,

eight, and ten in their entirety. (Doc. 13 at 4-6.) Defendants

move to dismiss the Title VII claims in counts one, three, and

five against them in their individual capacities only. (Id.) They

also concede that the FMLA claim in count nine survives dismissal.

(Id.) The motion, having been fully briefed, is ready for

resolution.

II. ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) provides that a

pleading 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). A Rule 12(b)(6) motion to dismiss is meant to “test[]

the sufficiency of a complaint” and not to “resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943,

952 (4th Cir. 1992). To survive such a motion, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

In considering a Rule 12(b)(6) motion, a court “must accept

as true all of the factual allegations contained in the complaint,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all

reasonable inferences must be drawn in the non-moving party’s

favor, Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).

However, the court “need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments.” Giarratano v. Johnson,

521 F.3d 298, 302 (4th Cir. 2008). Rule 12(b)(6) protects against

meritless litigation by requiring sufficient factual allegations

“to raise a right to relief above the speculative level” so as to

“nudge[] the[] claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678.

Thus, mere legal conclusions should not be accepted as true, and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678.

B. Motion to Dismiss

1. Section 1981, 1983, 1985, and 1986 Claims

First, Defendants argue that the section 1981, 1983, 1985,

and 1986 claims2 should be dismissed because federal employees

cannot be sued in their official or individual capacities under

these provisions for federal employment discrimination. (Doc. 13

at 5.) Davis responds that these claims should not be dismissed

because they are against Individual Defendants in their individual

capacities and that her allegation that she was required to obtain

childcare to work remotely was not in the federal employment

context because those Defendants acted as “childcare providers or

monitors.” (Doc. 15 at 5-6.) Davis concedes that an official

capacity claim cannot stand under these statutes. (Id. at 7.)

2 Section 1981 prohibits race-based discrimination in the making and

enforcement of contracts. Section 1983 prohibits the deprivation of

federal rights by any person acting under color of state law. Sections

1985 and 1986 together create a right of action for conspiracies to

violate civil rights.

Davis’s contention that she may allege individual capacity

employment discrimination claims against federal employees under

these statutes contravenes longstanding Supreme Court law. In

Brown v. General Services Administration, the Court held that a

plaintiff could not sue under section 1981 for discrimination by

a federal employer and that Title VII “provides the exclusive

judicial remedy for claims of discrimination in federal

employment.” Brown, 425 U.S. 820, 835 (1976); see also Great Am.

Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 376 (1979)

(extending Brown to § 1985(3) claims); 42 U.S.C. § 1981(c)

(encompassing only “nongovernmental discrimination and impairment

under color of State law”).

Davis seeks to escape Brown’s holding by pointing to her

allegation that Individual Defendants required her to obtain

childcare to work remotely, which she contends took place outside

of the federal employment context. (Doc. 15 at 2-3.) However, as

Defendants correctly argue (Doc. 17 at 2), Individual Defendants’

setting of the requirements for Davis’s remote work was integral

to their workplace supervisory duties. (Doc. 4 ¶ 20 (alleging

that childcare requirement was imposed in response to request to

work remotely)); cf. Smith v. CSRA, 12 F.4th 396, 415 (4th Cir.

2021) (discussing whether employer’s denial of remote work option

was a failure to accommodate under the Rehabilitation Act).

Indeed, Davis cannot claim employment discrimination under

Title VII while claiming that the same conduct did not occur in

the employment context under section 1981. Brown, 425 U.S. at 833

(“It would require the suspension of disbelief to ascribe to

Congress the design to allow its careful and thorough remedial

scheme to be circumvented by artful pleading.”). Moreover, Davis’s

reliance on Gregory v. Currituck Cnty., No. 21-1363, 2022 WL

1598961 (4th Cir. May 20, 2022), is inapposite, as plaintiffs there

did not even allege a Title VII violation, the defendants were

state actors rather than federal actors, and some of the conduct

by the individual defendant was clearly outside the scope of

employment, namely breaking into the plaintiff’s car. Id. at *2.

Finally, to the extent Davis invokes section 1983, such a claim is

not cognizable against these federal officers. See Hernandez v.

Mesa, 589 U.S. 93, 109 (2020) (stating that a section 1983 claim

must arise from violations of federal rights “under color of state

law” (emphasis in original)). Accordingly, Davis’s claims under

section 1981, 1983, 1985, and 1986 (Counts 2, 4, 6, and 7) will be

dismissed.

2. Negligent Retention and Supervision Claim

Defendants contend that Title VII preempts Davis’s negligent

retention and supervision claim because Davis alleges no facts to

distinguish this state law tort claim from her Title VII claims.

(Doc. 13 at 5.) Davis argues that because the court has not been

asked to dismiss the Title VII claims in whole, it should not

dismiss the state law claim. (Doc. 15 at 7-8.) Defendants argue

for the first time in their reply brief that Davis failed to comply

with the procedures of the Federal Tort Claims Act (“FTCA”). (Doc.

17 at 3-4.) They do not, however, specify any requirement Davis

failed to meet.

A tort claim against a federal agency must be brought under

the FTCA. Est. of Van Emburgh v. United States, 95 F.4th 795, 800

(4th Cir. 2024) (citing 28 U.S.C. §§ 1346(b), 2674). Where USPS

is the agency sued, the Postal Reorganization Act of 1970 provides

that the FTCA “shall apply to tort claims arising out of activities

of the Postal Service.” 39 U.S.C. § 409(c); Dolan v. U.S. Postal

Serv., 546 U.S. 481, 484-85 (2006).

Davis has the burden of demonstrating that the administrative

exhaustion requirements of the FTCA have been met to benefit from

its waiver of sovereign immunity. Est. of Van Emburgh, 95 F.4th

at 800. Certain FTCA requirements, such as presenting the claim

to the federal agency and presenting a “sum certain,” have been

treated as jurisdictional. See 28 U.S.C. § 2675(a); McNeil v.

United States, 508 U.S. 106, 111 (1993); Est. of Van Emburgh, 95

F.4th at 803. Further, because the FTCA’s administrative

exhaustion requirements “concern[ the court’s] subject matter

jurisdiction,” a defendant’s failure to timely raise them “is of

no importance.” Est. of Van Emburgh, 95 F.4th at 803. Rather,

the court “must consider the matter sua sponte.” Id. (citing

Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)).

Davis appears to raise her negligence claim against all

Defendants and, as to Individual Defendants, in both their official

and individual capacities. The individual capacity suits must be

dismissed because the FTCA precludes any civil action for money

damages against a federal employee — such as the negligence claim

alleged here — that could be brought against the United States

under 28 U.S.C. § 1346(b). 28 U.S.C. § 2679(b)(1).

This leaves Davis’s official capacity claim, which is

functionally raised against USPS. Hafer v. Melo, 502 U.S. 21, 25

(1991) (stating that official capacity suits “generally represent

only another way of pleading an action against an entity of which

an officer is an agent” (internal quotation marks and citation

omitted)). To be sure, the complaint does not even formally list

the negligence claim as an FTCA claim. And while Davis does allege

that she filed an informal charge of discrimination with the Equal

Employment Opportunity Commission and received a right-to-sue

letter on June 8, 2023, as required by 29 C.F.R. § 1601.28 for her

Title VII claims (Doc. 4 ¶¶ 11-13), the complaint contains no

allegation that Davis presented her tort claim or demand for a sum

certain to USPS, as separately required by 28 U.S.C. § 2675(a).

See 39 C.F.R. § 912.5(a) (stating that a claim is presented to

USPS when the claimant submits an “executed Standard Form 95, Claim

for Damage or Injury, or other written notification of an incident,

accompanied by a claim for money damages in a sum certain”).

Because Davis has not satisfied the administrative exhaustion

requirements for her negligent retention and supervision claim,

the court lacks jurisdiction, and the claim will be dismissed

without prejudice. Bloch v. Exec. Off. of the President, 164 F.

Supp. 3d 841, 862 (E.D. Va. 2016) (dismissing without prejudice

where plaintiff failed to exhaust administrative requirements).

3. Title VII Individual Capacity Suits

While Defendants do not move to dismiss the official capacity

claims under Title VII (and the court accordingly does not address

their merits), they do seek dismissal of the individual capacity

claims against Individual Defendants. (Doc. 13 at 5 (citing Lissau

v. Southern Food Srv., Inc., 159 F.3d 177, 180 (4th Cir. 1998)).)

Davis concedes that the Title VII claims should be dismissed

against Individual Defendants in their individual capacities.

(Doc. 15 at 8.) The motion to dismiss will therefore be granted

as to the individual capacity claims only.

4. Punitive Damages

Finally, Defendants seek dismissal of Davis’s tenth claim for

punitive damages because punitive damages are a form of relief

that can be granted only if a party prevails on certain claims.

(Doc. 13 at 6 (citing Gauldin v. Honda Power Equipment Mfg., Inc.,

351 F. Supp. 2d 455, 458 (M.D.N.C. 2005)).)

As a general rule, “[a] punitive damages claim is not

technically an independent cause of action, but is instead

dependent upon an award of compensatory damages on one of a

plaintiff’s other claims.” U.S. Tobacco Coop., Inc. v. Big S.

Wholesale of Virginia, LLC, 365 F. Supp. 3d 604, 618-19 (E.D.N.C.

2019) (citation omitted). Accordingly, the motion to dismiss the

punitive damages claim will be granted to the extent that Davis

alleges a separate cause of action. Because the briefing fails to

adequately address the availability of punitive damages on Davis’s

remaining claims, the court declines to address it at this time.

III. CONCLUSION

For the reasons stated, therefore,

IT IS ORDERED that Defendants’ partial motion to dismiss is

GRANTED IN PART as follows: counts two, four, six, and seven are

DISMISSED; counts one, three, and five are DISMISSED to the extent

they raise claims against Individual Defendants in their

individual capacity; and counts eight and ten are DISMISSED WITHOUT

PREJUDICE.

/s/ Thomas D. Schroeder

United States District Judge

June 11, 2024