Davis v. Geithner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
GREGORY O. DAVIS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-447 (RWR)
)
TIMOTHY F. GEITHNER, et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiffs, seventeen1 black police officers at the Bureau

of Engraving and Printing (“BEP”) bring this employment action

against the Secretary of the United States Department of Treasury

(“DOT”) and the plaintiffs’ supervisors, Christopher Cooch and

David Lindsey, alleging multiple acts of racial discrimination,

retaliation, and hostile work environment in violation of Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e et seq.2 The defendants have moved to dismiss claims in

the amended complaint for failure to exhaust administrative

remedies and for failure to state a claim upon which relief can

be granted. The request to dismiss the claim in ¶ 54 of the

amended complaint will be largely granted as conceded. Because

1
Two of the original nineteen plaintiffs, Cedric Smith and
Nathaniel Taylor, have passed away. Mem. of P. & A. in Supp. of
Pls.’ Opp’n to Defs.’ Mot. to Dismiss at 4 & n.4.
2
Plaintiffs also assert claims under 42 U.S.C. § 1981 which they
now agree do not state a cause of action. Those claims, as both
sides request, will be dismissed.
 - 2 -

Title VII claims cannot be brought by federal employees against

individual defendants, the request to dismiss Cooch and Lindsey

will be granted. The defendants’ request to dismiss certain

Title VII claims for plaintiffs’ failure to exhaust their

administrative remedies, treated as a motion for summary

judgment, will be granted because there is no genuine dispute

about material facts and the defendants are entitled to judgment

as a matter of law. Because the defendants do not point to

undisputed facts that show that claim preclusion bars the

plaintiffs’ claims regarding plaintiff Aileen Joy’s termination,

the defendants’ request to dismiss those claims, treated as a

motion for summary judgment, will be denied.

BACKGROUND

On March 14, 2008, the plaintiffs filed the original

complaint in this action. They later filed an amended complaint

against the Treasury Secretary, Cooch, and Lindsey alleging that

the defendants had discriminated against the plaintiffs because

of their race and color. At the relevant times, Cooch was “the

head of the Police Operations Division, and the Police Commander

of the Plaintiffs[.]” Am. Compl. ¶ 6. Lindsey was “the Police

Chief.” Id. ¶ 7. The plaintiffs were police officers at the BEP

located in Southwest, Washington, D.C. Id. ¶ 8.

The plaintiffs claim that the defendants have created a

hostile work environment and retaliated against them from 2002 to
 - 3 -

the present. Id. ¶ 9. The plaintiffs contend that they are

being retaliated against for filing “EEOC complaints, grievances,

and unfair labor practices complaints against the DOT,” id. ¶ 11,

and make a variety of factual allegations to support their

claims. For example, the plaintiffs allege that the defendants

discriminated and retaliated against plaintiff Gregory Davis by

refusing to promote him to vacant positions to which he applied.

See, e.g., id. ¶¶ 42, 64, 69–70, 72. The defendants also

allegedly discriminated against Davis by refusing to pay him

earned overtime pay, id. ¶¶ 59, 61, 67, and denying him other

employment opportunities, id. ¶ 57. The plaintiffs also assert

that Cooch specifically retaliated against the plaintiffs in a

number of ways including attempting to terminate Kenneth Dickens,

Aileen Joy, Kerri Williams, and Ricky Russell, id. ¶¶ 26, 28–29,

suspending Dickens, id. ¶ 44, and denying the plaintiffs

reimbursement for liability insurance that they were entitled to

receive, id. ¶ 47.

The plaintiffs allege that the defendants further

discriminated against them by excluding them from “early-out

retirement” for which they are eligible. Id. ¶ 53. The

plaintiffs state generally that they have exhausted their

administrative remedies, id. ¶ 2, but specifically note that

Davis filed an EEOC complaint regarding his claim that he was

owed eight hours of administrative leave, id. ¶ 55, and Davis
 - 4 -

raised his claim that he was denied overtime pay in October 2004

in an EEOC proceeding, id. ¶ 61.

The amended complaint charges that the defendants violated

Title VII by creating a hostile work environment (First and Third

counts) and retaliating against the plaintiffs (Second and Fourth

counts).

The defendants have moved for partial dismissal under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on several

grounds. First, the defendants argue that a number of the

plaintiffs’ claims should be dismissed because the plaintiffs

failed to timely exhaust administrative remedies. Mem. of P. &

A. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) at 1.

Second, the defendants contend that a number of the plaintiffs’

claims are barred by claim preclusion because they were

previously litigated and decided through a collective bargaining

process. Id. at 1–2. Third, the defendants move to dismiss the

matter against the individually named defendants arguing that

they are not proper defendants under Title VII. Id. at 2.

The plaintiffs oppose, arguing that they timely exhausted

their administrative remedies for the claims in their amended

complaint by either filing claims with an equal employment

opportunity (“EEO”) counselor or “Grievances with Management as

required by the [terms] of their employment.” Mem. of P. & A. in

Supp. of Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Mem.”) at
 - 5 -

3; see also id. at 7–8. The plaintiffs further argue that some

of their factual claims are pled to support their hostile work

environment claim. Id. at 8–9. With respect to the claims that

the defendants assert are barred by claim preclusion, the

plaintiffs urge that they seek not to relitigate the claims but

to use the factual assertions to support their hostile work

environment claim. Id. at 10. The plaintiffs contend that the

individual defendants are properly named because the defendants

are not entitled to qualified immunity in this case. Id. at 11.

DISCUSSION

A district court can dismiss a complaint under Rule 12(b)(6)

when the defendant shows that the plaintiff “fail[s] to state a

claim upon which relief can be granted[.]” Fed. R. Civ. P.

12(b)(6). “A Rule 12(b)(6) motion tests the legal sufficiency of

a complaint[.]” Browning v. Clinton, 292 F.3d 235, 242 (D.C.

Cir. 2002).

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.” 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570

(2007)). “[A] complaint attacked by a Rule 12(b)(6) motion to
 - 6 -

dismiss does not need detailed factual allegations[.]” Twombly,

550 U.S. at 555. However, “[w]here a complaint pleads facts that

are ‘merely consistent with’ a defendant’s liability, it ‘stops

short of the line between possibility and plausibility of

entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 557).

When considering a Rule 12(b)(6) motion, a court construes

the complaint in the light most favorable to the plaintiff and

“assume[s] the truth of all well-pleaded allegations.” Warren v.

District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). A court

may consider “only the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint and

matters of which [it] may take judicial notice.” EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.

1997).

“When ‘matters outside the pleadings are presented to and

not excluded by the court’ on a motion to dismiss under Rule

12(b)(6), ‘the motion must be treated as one for summary

judgment[.]’” Highland Renovation Corp. v. Hanover Ins. Grp.,

620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Fed. R. Civ. P.

12(d)). Since both the plaintiffs and the defendants rely on

materials outside the pleadings, see Defs.’ Mem., Decl. of

Frederick Whittington (“Whittington Decl.”); id., Fraternal Order

of Police/BEP Labor Comm. v. BEP (2005) (Strongin, Arb.); Pls.’
 - 7 -

Mem., Affid.3 of Gregory O. Davis, Sr. (“Davis Affid.”), the

motion to dismiss will be treated as a motion for summary

judgment on the issues of exhaustion of administrative remedies

and claim preclusion.

Summary judgment may be granted when “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009). There is a genuine dispute if “a reasonable jury could

return a verdict for the nonmoving party” based on the evidence

presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “A fact is ‘material’ if a dispute over it might affect

the outcome of a suit under the governing law[.]” Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Anderson, 477

U.S. at 248). The moving party has the initial burden “of

informing the district court of the basis for its motion, and

identifying those portions of the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of

a genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986) (internal quotation marks omitted). The

moving party is then entitled to summary judgment “against a

party who fails to make a showing sufficient to establish the

3
Davis’s “affidavit” is actually a declaration. See 28 U.S.C.
§ 1746.
 - 8 -

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Id. at

322. “In considering a motion for summary judgment, [the court

should draw] all ‘justifiable inferences’ from the evidence . . .

in favor of the nonmovant.” Cruz-Packer v. District of Columbia,

539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson, 477

U.S. at 255).

I. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

The defendants assert that certain claims in the complaint

should be dismissed for lack of subject matter jurisdiction

because the plaintiffs failed to timely exhaust their

administrative remedies. Defs.’ Mem. at 3. “Title VII

‘[c]omplainants must timely exhaust the[ir] administrative

remedies before bringing their claims to court.’” Payne v.

Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (alterations in

original) (quoting Bowden v. United States, 106 F.3d 433, 437

(D.C. Cir. 1997)). However, Title VII’s “time-filing

requirements are not jurisdictional prerequisites to suit[.]”

Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir.

1985); accord Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

393 (1982). If a plaintiff does not timely exhaust her

administrative remedies prior to filing a Title VII action, her

claim is subject to dismissal under Rule 12(b)(6) for failure to

state a claim upon which relief can be granted. Noisette v.
 - 9 -

Geithner, 693 F. Supp. 2d 60, 65 (D.D.C. 2010). The defendants

bear the burden of proving that the plaintiffs failed to exhaust

their remedies because exhaustion of administrative remedies is

an affirmative defense. Bowden, 106 F.3d at 437.

Title VII requires that any personnel action affecting

government employees “be made free from any discrimination based

on race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-16(a). If a federal employee believes that she has been

discriminated against in violation of Title VII, she must first

consult an EEO counselor “to try to informally resolve the

matter.” 29 C.F.R. § 1614.105(a). The employee “must initiate

contact with a Counselor within 45 days of the date of the matter

alleged to be discriminatory or, in the case of personnel action,

within 45 days of the effective date of the action.” Id. The

45-day period begins to run when the employee “knew, or should

have known, about the alleged discriminatory action[.]” Stewart

v. Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003). If the informal

counseling does not resolve the situation, the aggrieved person

may file a formal administrative discrimination complaint. 29

C.F.R. §§ 1614.105(b)–(d), 1615.106. Finally, the employee may

file a civil action in federal court:

(a) Within 90 days of receipt of the final action on an
individual or class complaint if no appeal has been
filed;
(b) After 180 days from the date of filing an
individual or class complaint if an appeal has not been
filed and final action has not been taken;
 - 10 -

(c) Within 90 days of receipt of the [EEOC’s] final
decision on an appeal; or
(d) After 180 days from the date of filing an appeal
with the [EEOC] if there has been no final decision by
the [EEOC].

29 C.F.R. § 1614.407.

A. Davis

The defendants argue that Davis never “contested . . . via

grievance or complaint” any non-selections identified in

paragraphs 42, 64, 69, or 72 of the amended complaint. Defs.’

Mem. at 8. That appears to be an overstatement. The defendants’

own declarant, Frederick Whittington, the Chief of the Office of

Equal Opportunity and Diversity at the BEP, confirms that Davis

filed a formal complaint that involved three non-selections --

for vacancy announcements 2003-007-AJC, 2004-004-LJH, and 2005-

043-RYM -- identified in paragraphs 42, 64, and 69 of the amended

complaint. Whittington Decl. ¶ 11. Davis, too, confirms that he

filed a grievance regarding his non-selection for vacancy

announcement 2003-007-AJC. Davis Affid. ¶ 7.4 But, the

defendants contend more specifically that Davis never initiated

contact with an EEO counselor when he was not promoted to vacant

Sergeant positions five times from 1998 to 2006 involving vacancy

announcements 98-0131-YDC, 2001-136-FCM, 2002-075-AJC, 2004-055-

LJH, and 2006-14-RYM, Defs.’ Mem. at 8; see Am. Compl. ¶¶ 64, 72,

4
Davis also disputes that his non-selection involving vacancy
announcement 2005-043-RYM was unexhausted, maintaining that he
filed a grievance over the decision. Davis Affid. ¶ 1.
 - 11 -

or when Davis allegedly was denied an instructor opportunity and

certain overtime and night differential payments, Defs.’ Mem. at

8-9; Am. Compl. ¶¶ 57, 59, 61, 67. Davis responds that he did

file grievances regarding his non-selection for vacancy

announcement 2002-075-AJC, and the decisions denying him the

instructor opportunity, overtime pay, and night differential pay.

Davis Affid. ¶¶ 2-4, 6. With those material facts in dispute,

summary judgment on the claims involving those disputed facts is

inappropriate. However, the plaintiffs do not factually rebut

that Davis’s non-selections for vacancy announcements 98-0131-

YDC, 2001-136-FCM, 2004-055-LJH, and 2006-14-RYM are unexhausted,

and judgment will be entered for the defendants regarding those

decisions.

B. Less qualified selectees

The amended complaint alleges that the plaintiffs were not

selected for vacancies that were filled with less-qualified

candidates in retaliation for the plaintiffs’ prior protected EEO

activity. Am. Compl. ¶ 54. The defendants argue that this claim

should be dismissed, asserting that the “[p]laintiffs do not

appear to have contested these non-selections and/or promotions,”

and noting that the amended complaint sets forth no facts

“tending to show that [the plaintiffs] have complied with the EEO

guidelines.” Defs.’ Mem. at 7, 9. The plaintiffs do not respond

to the defendants’ arguments and factual assertions regarding
 - 12 -

this claim beyond Davis’s non-selections treated above. Pls.’

Mem. at 8. To that extent, the defendants’ arguments and factual

assertions will be deemed undisputed. See Fed. R. Civ. P.

56(e)(2) (allowing court to consider as undisputed a movant’s

factual assertion that the opponent fails to address); Iweala v.

Operational Techs. Servs., Inc., 634 F. Supp. 2d 73, 80–81

(D.D.C. 2009) (deeming conceded the defendant’s exhaustion

argument in its motion where the plaintiff failed to respond to

it in her opposition). Insofar as this claim reaches beyond

Davis’s non-selection for vacancy announcement 2002-075-AJC, it

will be dismissed.

C. Reimbursements, early retirement

The defendants claim that the plaintiffs did not pursue

their administrative remedies before bringing their claim that

they were retaliatorily denied reimbursement for liability

insurance and that they were discriminatorily excluded from

early-out retirement. Defs.’ Mem. at 9; Whittington Decl. ¶¶ 12-

13; see Am. Compl. ¶¶ 47, 53. The plaintiffs counter that they

did contest these denials.5 Pls.’ Mem. at 8. Summary judgment

on this claim will be denied given the disputed material facts.

5
That gives plaintiffs the benefit of the doubt springing from
frequent imprecision and vexingly loose factual organization in
their filings.
 - 13 -

D. Dickens

The defendants assert that Dickens’s claim stemming from a

2006 proposed suspension that was allegedly retaliatory is

untimely since a final agency decision on the claim was issued on

October 23, 2007, more than 90 days before he filed this action.

Defs.’ Mem. at 9; Whittington Decl. ¶¶ 6-7; see Am. Compl. ¶ 44.

The plaintiffs do not argue that this claim is asserted as a

timely exhausted discrete act of discrimination; instead, they

claim that it is offered as part of their hostile work

environment claim.

“A hostile work environment claim is composed of a series of

separate acts that collectively constitute one ‘unlawful

employment practice.’” Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 117 (2002) (quoting 42 U.S.C. § 2000e–5(e)(1)). In

distinguishing claims that are discrete acts from those that are

part of a hostile work environment claim, the D.C. Circuit has

noted that claims are:

“part of the same actionable hostile environment claim”
only if they are adequately linked into a coherent
hostile environment claim -- if, for example, they
“involve[] the same type of employment actions, occur[]
relatively frequently, and [are] perpetrated by the
same managers.” Morgan, 536 U.S. at 120–21; see also
id. at 118 (excluding any incident that “had no
relation to the [other] acts . . . or for some other
reason, such as certain intervening action by the
employer, was no longer part of the same hostile
environment claim”); Wilkie v. Dep’t of Health & Human
Servs., 638 F.3d 944, 951 (8th Cir. 2011) (“[A]cts
before and after the limitations period [that are] so
similar in nature, frequency, and severity . . . must
 - 14 -

be considered to be part and parcel of the hostile work
environment . . . .” (alterations and emphasis in
original)); Wheaton v. N. Oakland Med. Ctr., 130
Fed.Appx. 773, 787 (6th Cir. 2005) (Morgan requires
inquiry into whether incidents “occurring outside the
statutory period are sufficiently related to those
incidents occurring within the statutory period as to
form one continuous hostile work environment.”
(emphasis in original)).

Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011).

Whether plaintiffs will succeed in proving a hostile work

environment claim should await the close of discovery. However,

given the plaintiffs’ concession that Dickens’s proposed

suspension is not pled as an actionable discrete act, the

defendants’ motion as to this event is moot.

II. CLAIM PRECLUSION

The defendants contend that claim preclusion bars any claim

based upon plaintiff Aileen Joy’s termination.6 Defs.’ Mem. at

12; Defs.’ Reply at 3; see Am. Compl. ¶¶ 26, 28. The defendants

provide evidence that challenges to Joy’s termination were

already decided by an arbitrator under the negotiated grievance

procedure outlined in the Collective Bargaining Agreement between

6
The defendants also argue that claim preclusion bars Dickens’s
claim regarding his 2005 proposed termination because it was
resolved by a settlement agreement. Defs.’ Mem. at 12; see Am.
Compl. ¶¶ 26, 31. The plaintiffs do not oppose dismissing this
settled claim, Pls.’ Mem. at 5, and it will be dismissed. In
addition, the defendants speak of claims by “plaintiffs” Kerri
Williams and Ricky Russell, Defs.’ Mem. at 12, 13, but Williams
and Russell are not plaintiffs. See Pls.’ Mem. at 10 nn. 5-6.
 - 15 -

the BEP and the Fraternal Order of Police District of Columbia

Lodge No. 1, the plaintiffs’ union.7

Under claim preclusion, “a final judgment on the merits of

an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that

action.” Allen v. McCurry, 449 U.S. 90, 94 (1980). Claim

preclusion bars subsequent lawsuits “if there has been prior

litigation (1) involving the same claims or cause of action, (2)

between the same parties or their privies, and (3) there has been

a final, valid judgment on the merits, (4) by a court of

competent jurisdiction.” Smalls v. United States, 471 F.3d 186,

192 (D.C. Cir. 2006) (citing Blonder–Tongue Labs., Inc. v. Univ.

of Ill. Found., 402 U.S. 313, 323–24 (1971)). “Whether two cases

implicate the same cause of action turns on whether they share

the same ‘nucleus of facts.’” Drake v. FAA, 291 F.3d 59, 66

(D.C. Cir. 2002) (quoting Page v. United States, 729 F.2d 818,

820 (D.C. Cir. 1984)).

The plaintiffs explicitly concede the first two factors,

stating that the claims at issue “have been previously litigated

or decided through the collective bargaining process” and admit

that this allegation “involve[s] the same nucleus of facts and

7
The defendants submit the arbitration decision regarding Aileen
Joy. Defs.’ Mem., Ex. B. Because the decision does not appear
to be on the public record and is not excluded, the defendants’
motion to dismiss the plaintiffs’ claims regarding Joy’s
termination will be treated as a motion for summary judgment.
 - 16 -

same parties as stated in prior complaints or grievance[s].”

Pls.’ Mem. at 10. However, the defendants do not identify

undisputed facts that show that the third and fourth claim

preclusion factors are met. Moreover, the plaintiffs maintain

that Joy’s termination is alleged as one in a series of incidents

comprising a hostile work environment claim. Because the

defendants do not demonstrate that claim preclusion bars

plaintiffs’ claims regarding Joy’s termination as a matter of

law, and summary judgment on the hostile work environment claim

should await the close of discovery, summary judgment will not be

granted.

III. INDIVIDUALLY NAMED DEFENDANTS

The defendants move to dismiss Cooch and Lindsey as

improperly named defendants in this Title VII action. In a Title

VII action, “the head of the department, agency, or unit, as

appropriate, shall be the defendant.” 42 U.S.C. § 2000e-16(c);

see also Jarrell, 753 F.2d at 1091 (“[T]he head of the agency is

the only proper defendant in a Title VII action[.]”). The

amended complaint properly names the Treasury Secretary as a

defendant. The plaintiffs do not dispute that Cooch and Lindsey

were not department, agency, or unit heads, but instead make the

non-responsive argument that Cooch and Lindsey must remain as

defendants because they are not entitled to qualified immunity

from suit. Pls.’ Mem. at 11. Qualified immunity for an
 - 17 -

individual defendant plays no role in an action under a statute

that, unlike 42 U.S.C. § 1983, establishes no potential liability

at all for any individual defendant. Because Title VII does not

provide a civil cause of action against the individually named

defendants, the claims against Cooch and Lindsey will be

dismissed. See Rowland v. Walker, 245 F. Supp. 2d 136, 140

(D.D.C. 2003); Wilkins v. Daley, 49 F. Supp. 2d 1, 3 (D.D.C.

1999).

CONCLUSION AND ORDER

The plaintiffs have shown a genuine dispute of material fact

regarding some but not all allegedly unexhausted complaints, and

have conceded the arguments for dismissing the claims in ¶ 54 of

the amended complaint that reach beyond one of Davis’s non-

selections. The defendants have not shown that they are entitled

to judgment as a matter of law regarding claims about Joy’s

termination, and their challenge to Dickens’s 2006 proposed

suspension is moot. The individual defendants are not proper

party defendants for Title VII claims brought by federal

employees. Accordingly, it is hereby

ORDERED that the defendants’ motion [31] for partial

dismissal, treated in part as a motion for summary judgment, be,

and hereby is, GRANTED IN PART and DENIED IN PART. Summary

judgment is entered for the Secretary on claims of discriminatory

non-selection of Davis on vacancy announcements 98-0131-YDC,
 - 18 -

2001-136-FCM, 2004-055-LJH, and 2006-14-RYM. Summary judgment is

denied on Davis’s claims of discriminatory non-selection for

vacancy announcement 2002-075-AJC, denial of an instructor

opportunity, and denial of overtime pay and night differential

pay; plaintiffs’ claims of denied insurance premium

reimbursements, and denied early retirements; and Joy’s claims

regarding her termination. Plaintiffs’ claims in paragraph 54 of

the Amended Complaint beyond Davis’s claim of non-selection for

vacancy announcement 2002-075-AJC, and Dickens’s claim regarding

his 2005 proposed termination are dismissed. Defendants’ motion

regarding Dickens’s 2006 proposed suspension is denied as moot.

Christopher Cooch and David Lindsey are dismissed as party

defendants. Claims under 42 U.S.C. § 1981 are dismissed.

SIGNED this 28th day of January, 2013.

/s/
RICHARD W. ROBERTS
United States District Judge