United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [Docket Nos. 5 & 9]
DENISE PAGE HOOD, District Judge.
On September 23, 2013, Plaintiff Joshua Aultman filed the instant suit against several defendants: Janet Napolitano, Devin Chamberlain, Randy Dyer, Marlin Jenkins, Fadia Odeh, Steven Olejar, Christopher Perry, and Donald Vaughn. Plaintiff claims that Defendants (1) discriminated against him based on perceived religion and actual religion in violation of Title VII of the Civil Rights Act of 1962 (hereinafter "Title VII"), the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. §1983; (2) violated his First Amendment rights to free speech, expressive association, and religious freedom; (3) violated his Fourteenth Amendment right to equal protection; and (4) violated the Whistleblower Protection Act of 1989.
This matter comes before the Court pursuant to Motions to Dismiss by all Defendants [Docket No. 5, filed January 21, 2014] and by individual Defendants Devin Chamberlain, Randy Dyer, Marlin Jenkins, Fadia Odeh, Steven Olejar, Christopher Perry, and Donald Vaughn (hereinafter "CBP defendants") [Docket No. 9, filed May 16, 2014]. Plaintiff filed a Response to both Motions to Dismiss [Docket No. 8, filed February 11, 2014; Docket No. 11, filed June 7, 2014]. For the reasons stated below, both of Defendants' Motions to Dismiss are GRANTED.
The Court's understanding of the facts is as follows: Plaintiff Joshua Aultman was an employee of the United States Customs and Border Protection (hereinafter "CBP") from 2007 until his resignation on January 15, 2013. CBP is a law enforcement agency within the Department of Homeland Security (hereinafter "DHS"). Plaintiff served as a CBP agent and inspector at Detroit Metro Airport.
On March 13, 2013, almost two months after his resignation, Plaintiff contacted an Equal Employment Opportunity (EEO) Counselor and alleged that he had been subjected to a hostile work environment based on his race as a Caucasian, and religion as a Christian from the spring of 2010 until his resignation. Plaintiff subsequently filed a formal EEO complaint regarding the same issues. The DHS Office of Civil Rights and Civil Liberties (CRCL) dismissed Plaintiff's complaint as untimely, because he failed to initiate EEO counseling within 45 days of the alleged acts of discrimination.
II. STANDARD OF REVIEW
Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to dismiss based on failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.] Factual allegations must be enough to raise a right to relief above the speculative level..." Id. at 555 (internal citations omitted). Although not outright overruling the "notice pleading" requirement under Rule 8(a)(2) entirely, Twombly concluded that the "no set of facts" standard "is best forgotten as an incomplete negative gloss on an accepted pleading standard." Id. at 563.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. Such allegations are not to be discounted because they are "unrealistic or nonsensical, " but rather because they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). In sum, for a complaint to survive a motion to dismiss, the non-conclusory "factual content" and the reasonable inferences from that content must be "plausibly suggestive" of a claim entitling a plaintiff to relief. Id.
Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not shown that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). The court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint may also be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).
Rule 12(b)(1) of the Rules of Civil Procedure allows an action to be dismissed for lack of subject matter jurisdiction. In a Rule 12(b)(1) motion, the plaintiff has the burden of proving that the Court has subject matter jurisdiction. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th Cir. 1996). A Rule 12(b)(1) motion to dismiss is either based on a facial attack or a factual attack of the complaint. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). In a facial attack, the Court considers the sufficiency of the complaint and must accept all factual allegations made therein as true unless clearly erroneous. Id. at 326. In contrast, a factual attack does not require the Court to take all factual allegations as true. Id. at 325. Rather, the Court must resolve any factual disputes and determine whether it in fact has subject matter jurisdiction. Id.
In the Defendants' Motion to Dismiss by all Defendants, Defendants argue that the complaint should be dismissed for several reasons [Docket No. 5, filed January 21, 2014]. First, the religious discrimination claims are barred because Plaintiff failed to timely exhaust his administrative remedy. Second, Plaintiff's constitutional claims are preempted by Title VII and the Civil Service Reform Act of 1978 (hereinafter "CSRA"), and Plaintiff fails to state a claim under 42 U.S.C. § 1983. Third, the Court lacks subject matter jurisdiction over Plaintiff's whistleblower claim. The Defendants' Motion to Dismiss by individual Defendants reiterates the second ...