Myvett v. Williams

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BARRINGTON MYVETT, :
:
Plaintiff, : Civil Action No.: 08-1284 (RMU)
:
v. : Re Document Nos.: 5, 8
:
THOMAS H. WILLIAMS et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING THE DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT AND DENYING
AS MOOT THE DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

This matter is before the court on the defendants’ motion to dismiss the plaintiff’s

amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The

plaintiff brings this action against Thomas H. Williams, the Associate Director for the Court

Services and Offender Supervision Agency of the District of Columbia (“CSOSA”), Carol

Holloway, the Deputy Director of Security at CSOSA, Van Spivey, the Drug Testing Operations

Manager at CSOSA, and Juanita Barnes, a CSOSA Drug Testing Technician. Am. Compl. ¶ 4.

The plaintiff, a former Drug Testing Technician at CSOSA, alleges that the defendants

unjustifiably had him arrested at CSOSA and subsequently wrote false statements about him.

See generally Am. Compl. The Chief of the Civil Division of the United States Attorney’s

Office for the District of Columbia has certified that, at all relevant times, the defendants were

acting within the scope of their employment.

Because the court concludes that the plaintiff has failed to plead sufficient facts that, if

true, would show that the defendants were acting outside the scope of their employment, the
court substitutes the United States as the defendant party with respect to the four common law

tort claims pursuant to 28 U.S.C. § 2679(d)(1). In addition, because the plaintiff has also failed

to plead that he exhausted his administrative remedies prior to commencing this action, the court

dismisses the plaintiff’s common law tort claims pursuant to 28 U.S.C. § 2675(a). The plaintiff

also brings constitutional claims under 42 U.S.C. § 1983 (“§ 1983”) alleging a violation of his

Fourth and Fourteenth Amendment rights, which the court dismisses for lack of state action.

Finally, the court dismisses, without prejudice, the plaintiff’s claims for retaliation, hostile work

environment and civil rights violations under § 1983 because Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000 et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981

(“§ 1981”), are the exclusive remedies for federal workplace discrimination claims. 1

II. BACKGROUND

A. Factual History 2

From Septembers 2004 to May 2008 the plaintiff was employed as a drug testing

technician with CSOSA, Am. Compl. ¶¶ 3, 10, an independent executive branch agency, Defs.’

Mot. to Dismiss the Pl.’s Am. Compl. (“Defs.’ Mot.”) at 1 n.1.

In August 2006 the plaintiff filed an informal Equal Employment Opportunity (“EEO”)

1
Because the plaintiff filed an amended complaint after the defendants moved to dismiss the
original complaint, the court denies as moot the defendants’ motion to dismiss the original
complaint. See P & V Enters. v. U.S. Army Corps of Eng’rs, 466 F. Supp. 2d 134, 135 n.1
(D.D.C. 2006).
2
For the purposes of this memorandum opinion the court must treat the complaint’s factual
allegations – including mixed questions of law and fact – as true and draw all reasonable
inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67
(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.
2003); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

2
complaint against Branch Chief Michael Gunn and a formal EEO complaint against

Paul Quander. 3 Am. Compl. ¶ 5. Subsequently, on May 4, 2007, 4 Williams informed the

plaintiff that there were concerns about his behavior and that he was being placed on

administrative leave pending an investigation. Id. The plaintiff was told that he was required to

meet with CSOSA’s Office of Professional Responsibility (“OPR”) no later than May 9, 2007.

Id. ¶ 6. When the plaintiff arrived at CSOSA on May 9, he was stopped at a security checkpoint

and prohibited from entering the building. Id. ¶ 7. Later, armed security officers escorted the

plaintiff to a room within the building. Id.

The plaintiff alleges that while he was in the building, Holloway called the Metropolitan

Police Department (“MPD”) falsely complaining that the plaintiff was acting disorderly and that

he had no permission to be on CSOSA premises. Id. At the direction of Holloway and

Williams, the plaintiff was detained and prevented from leaving CSOSA pending the arrival of

MPD. Id. After MPD arrived, the plaintiff was arrested, charged with unlawful entry and

transported to MPD for booking. Id. The criminal charges against the plaintiff were

subsequently dismissed. Id. ¶ 8.

The plaintiff contends that in May 2007, Spivey asked Barnes to write a letter comparing

the plaintiff’s behavior to an unstable student at Virginia Tech, who killed thirty-three people

3
Although neither party states what position Quander held at CSOSA, exhibit 4 of the defendants’
motion to dismiss indicates that he was the Director of CSOSA at least during November 2007.
Defs.’ Mot., Ex. 4.
4
Neither party provides any details concerning the time period from August 2006 to May 2007.
See generally Am. Compl.; Defs.’ Mot.; Pl.’s Opp’n to Defs.’ Mot. to Dismiss the Pl.’s Am.
Compl (“Pl.’s Opp’n”).

3
before killing himself in April 2007. 5 Id. ¶ 9. On May 14, 2007, Barnes wrote such a letter

indicating that she feared for her safety because the plaintiff constantly watched the guards and

cameras at CSOSA very closely and wrote down his observations. Id. ¶ 9. The plaintiff was

terminated from CSOSA on May 13, 2008. 6 Am. Compl. ¶ 4.

B. Procedural History

This action was commenced in the Superior Court of the District of Columbia and

removed to this court. See Notice of Removal. Pursuant to the Federal Employees Liability

Reform and Tort Compensation Act of 1988 (“Westfall Act”), the Chief of the Civil Division of

the United States Attorney’s Office for the District of Columbia certified (“Westfall

Certification”) that at all relevant times the defendants were acting within the scope of their

employment. Defs.’ Mot., Ex. 1.

After the defendants filed their initial motion to dismiss, the plaintiff filed an amended

complaint. In the amended complaint the plaintiff alleges four common law tort claims:

defamation, false imprisonment, false arrest and malicious prosecution. See generally Am.

Compl. In addition, the plaintiff brings a claim under § 1983 alleging a violation of his Fourth

and Fourteenth Amendment rights. Id. Finally, the plaintiff brings claims for hostile work

environment and retaliation and a claim under § 1983 for violation of his civil rights. Id. The

defendants filed the instant motion to dismiss the amended complaint on October 24, 2008,

which the plaintiff opposes. The court turns now to the parties’ arguments.

5
According to the plaintiff, Spivey also solicited a similar letter from another individual, Monica
Crichlow, who refused to provide one. Am. Compl. ¶ 9.
6
The plaintiff offers no factual details concerning the time period between his arrest on May 9,
2007 and his termination on May 13, 2008. See generally Am. Compl.; Pl.’s Opp’n.
4
 III. ANALYSIS

A. Legal Standard for a Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing

FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice

pleading is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of

his prima facie case in the complaint, Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14

(2002), or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211

F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

Yet, the plaintiff must allege “any set of facts consistent with the allegations.” Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007) (abrogating the oft-quoted language from

Conley, 355 U.S. at 45-56, instructing courts not to dismiss for failure to state a claim unless it

appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”);

Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)

(affirming that “a complaint needs some information about the circumstances giving rise to the

claims”). While these facts must “possess enough heft to ‘sho[w] that the pleader is entitled to

relief,’” a complaint “does not need detailed factual allegations.” Twombly, 127 S. Ct. at 1964,

1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual
5
allegations – including mixed questions of law and fact – as true and draw all reasonable

inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.

2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.

Cir. 2004); Browning, 292 F.3d at 242.

B. Counts I – IV: Defamation, False Imprisonment, False Arrest and Malicious
Prosecution

1. The Defendants Were Acting Within the Scope of Their Employment

As an initial matter, the plaintiff challenges the Westfall Certification. For the reasons

stated below, the court determines that the plaintiff has not pled sufficient facts to overcome the

presumption under the Westfall Certification that the defendants were acting within the scope of

their employment.

a. Legal Standard for Immunity of Federal Officers Under the Westfall Act

The Westfall Act confers immunity on federal employees “by making [a Federal Tort

Claims Act (“FTCA”)] action against the Government the exclusive remedy for torts committed

by Government employees in the scope of their employment.” United States v. Smith, 499 U.S.

160, 163 (1991); 28 U.S.C. § 2679(b)(1). The statute provides that:

[u]pon certification by the Attorney General that the defendant employee was
acting within the scope of his office or employment at the time of the incident out
of which the claim arose, any civil action or proceeding commenced upon such
claim in a United States district court shall be deemed an action against the United
States under the provisions of this title and all references thereto, and the United
States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1). In a case in which the Attorney General, or by designation the United
6
States Attorney in the district in which the claim is brought, files a certification that the original

defendant was acting within the scope of his employment, such certification has the following

consequences: (1) if the suit originated in state court, then the Attorney General or his designee

is required to remove it to federal court; (2) the United States shall be substituted as the sole

defendant; and (3) if the plaintiff has not brought suit pursuant to the FTCA, the suit is converted

into one against the United States under the FTCA. 28 U.S.C. § 2679(d)(2); 28 C.F.R. § 15.3(a)

(2002); Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995) abrogated on other

grounds by Osborn v. Haley, 549 U.S. 225 (2007). The certification is conclusive for purposes

of removal; however, the substitution and conversion consequences are subject to judicial

review; that is, they are contingent on whether the court finds that the original defendant acted

within the scope of his employment. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434

(1995) (stating that “[t]he Attorney General’s certification that a federal employee was acting

within the scope of his employment . . . does not conclusively establish as correct the substitution

of the United States as defendant in place of the employee”); Haddon, 68 F.3d at 1423 (noting

that “the federal court may independently determine whether the employee acted within the

scope of employment and, therefore, whether to substitute the federal government as the proper

defendant”).

To determine whether a federal employee was acting within the scope of his employment,

a federal court must apply the law of the state where the tortious act occurred. Tarpeh-Doe v.

United States, 28 F.3d 120, 123 (D.C. Cir. 1994); Garber v. United States, 578 F.2d 414, 415

(D.C. Cir. 1978). The law of the District of Columbia, which is where the alleged tortious acts in

this case occurred, is drawn from the Restatement (Second) of Agency § 228 (“Restatement

§228”). Haddon, 68 F.3d at 1423. The Restatement provides:
7
 [c]onduct of a servant is within the scope of employment if, but only if: (1) it is of
the kind he is employed to perform; (2) it occurs substantially within the
authorized time and space limits; (3) it is actuated, at least in part, by a purpose to
serve the master; and (4) if force is intentionally used by the servant against
another, the use of force is not unexpected by the master.

Restatement § 228(1). When the court reviews the validity of a certification filed by the

Attorney General or his designee, the certification is entitled to “prima facie effect” that the

defendants acted within the scope of their employment. Kimbro v. Velten, 30 F.3d at 1509 (D.C.

Cir. 1994) (internal citations omitted). The burden then shifts to the plaintiff to prove by a

preponderance of the evidence that the defendants acted outside the scope of their employment.

Id. at 1509; Schneider v. Kissinger, 310 F. Supp. 2d 251, 264 (D.D.C. 2004).

The plaintiff, however, may not be able to “discharge this burden without some

opportunity for discovery.” Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003). Therefore,

“to obtain discovery and an evidentiary hearing, [the plaintiff] need only [allege] sufficient facts

that, taken as true, would establish that the defendants’ actions exceeded the scope of their

employment.” Id. at 215. Nevertheless, “not every complaint will warrant further inquiry into

the scope-of-employment issue.” Id. at 216. The court must recognize the congressional intent

“to protect federal employees from the uncertain and intimidating task of defending suits that

challenge conduct within the scope of their employ.” Brown v. Armstrong, 949 F.2d 1007, 1011

(8th Cir. 1991).

b. The Plaintiff Does Not Allege Sufficient Facts That, If True,
Would Overcome the Presumption that the Defendants
Were Acting Within the Scope of Their Employment

The plaintiff maintains that there is a factual dispute about the scope of the defendants’

employment and that he should be granted some discovery to show that the defendants acted

“maliciously” and “contrary to their employer’s interest.” Pl.’s Opp’n at 4. Specifically, he
8
seeks depositions of the defendants and other witnesses that would indicate “their intent to cause

[the plaintiff’s] arrest and termination.” Id.

The defendants retort that the plaintiff has not alleged sufficient facts that, if true, would

demonstrate that they were acting outside the scope of employment under the laws of the District

of Columbia and therefore no discovery is necessary. Defs.’ Reply at 3. Furthermore, the

defendants aver that the plaintiff’s allegations are not sufficient to rebut the Westfall

Certification. See id. at 5-6.

i. The Defendants’ Actions Were of the Kind They Were Employed to Perform

Pursuant to § 228 of the Restatement, the defendants’ actions must be analyzed under

three applicable criteria to determine whether they have acted within the scope of their

employment. 7 Regarding the Restatement’s first criterion, in order “to qualify as conduct of the

kind [the defendants were] employed to perform, the [defendants’] actions must have been either

‘of the same general nature as that authorized’ or ‘incidental to the conduct authorized.’”

Haddon, 68 F.3d at 1424 (emphasis in original) (quoting Restatement (Second) of Agency §

229). Though it is unclear from the parties’ arguments what the defendants’ exact

responsibilities are at CSOSA, see generally Am. Compl.; Defs.’ Mot., because the amended

complaint does allege at least some tortious conduct by the defendants, and because the court

draws all reasonable inferences in favor of the plaintiff, Macharia, 334 F.3d at 64, 67, the court

determines that the defendants’ actions are not of the same general nature as they were

authorized to perform.

7
The final criterion of Restatement § 228 only applies “if force is intentionally used by the
servant.” Because the plaintiff does not allege that force was intentionally used by any of the
defendants, see generally Am. Compl., this criterion does not apply.

9
 This criterion can still be satisfied, however, if the defendants’ conduct was “incidental to

the conduct authorized” as employees of CSOSA. Haddon, 68 F.3d at 1424. “According to the

D.C. Court of Appeals, conduct is ‘incidental’ to an employee’s legitimate duties if it is

‘foreseeable.’” Id. (citing Weinberg v. Johnson, 518 A.2d 985, 990 (D.C. 1986); District of

Columbia v. Coron, 515 A.2d 435, 438 (D.C. 1986)). “To be foreseeable, the torts must be ‘a

direct outgrowth of the employee’s instructions or job assignment.’” Id. (quoting Boykin v.

District of Columbia, 484 A.2d 560, 562 (D.C. 1984)).

Precedent compels this court to construe the term “incidental” broadly. This Circuit has

held, for example, that a mattress delivery man who raped and beat a customer after engaging in

a dispute about her method of payment was held to be acting within the scope of his

employment. Lyon v. Carey, 533 F.2d 649, 651-52 (D.C. Cir. 1976). The Circuit explained that

“deliverymen, endeavoring to serve their masters, are likely to be in situations of friction with

customers, and . . . these foreseeable altercations may precipitate violence . . . even though the

particular type of violence was not in itself anticipated or foreseeable.” Id. Similarly, the D.C.

Court of Appeals has held that a laundromat employee who engaged in a dispute with a

laundromat patron, while the employee was removing clothes from the washing machine as his

job required, was acting within the scope of his employment when he subsequently shot the

patron. Johnson v. Weinberg, 434 A.2d 404, 406 (D.C. 1981). This Circuit has stated that Lyon

and Johnson “mark the outer limits of scope of employment.” Haddon, 68 F.3d at 1425 (citing

Boykin, 484 A.2d at 563). In contrast, in Haddon, the Circuit concluded that a White House

electrician who threatened a White House associate chef because the chef had filed an

employment discrimination claim against a different White House employee did not commit a

tort that was “a direct outgrowth” of the electrician’s duties. 68 F.3d at 1425. Importantly, the
10
court noted that “the electrician’s threat did not stem from a dispute over the performance of his

work.” Id. (emphasis in original); see also Koch v. United States, 209 F. Supp. 2d 89, 93

(D.D.C. 2002) (holding that the defendants’ actions were within his scope of employment

because “the alleged incident upon which this suit is premised arose solely because of a dispute

about the work performances of [the] plaintiff” and the defendant).

Like the events in Koch, the incidents that the plaintiff describes in his amended

complaint arose from a dispute about his work performance. See generally Am. Compl.

Specifically, the plaintiff was informed by Williams that there were concerns about his behavior,

that he was being placed on administrative leave and that he should present himself for an

investigatory interview to be held by May 9, 2007 at CSOSA’s OPR. Am. Compl. ¶ 6. It was

this appearance at CSOSA that resulted in Williams and Holloway calling the MPD and having

the plaintiff arrested, and it was the investigation of the plaintiff’s job performance that resulted

in Spivey allegedly soliciting false statements about the plaintiff. Id. ¶¶ 7, 9. Because the

defendants’ actions stemmed from a dispute about the plaintiff’s job performance, they were

incidental to the defendants’ employment at CSOSA. See Haddon, 68 F.3d at 1425; Koch, 209

F. Supp. 2d at 93.

ii. The Defendants’ Actions Occurred Substantially Within
the Authorized Time and Space Limits

Because the plaintiff fails to allege that the defendants’ conduct occurred outside of

CSOSA or outside of normal working hours, the criterion that conduct “occur[] substantially

within the authorized time and space limits” is met. Restatement § 228. Williams instructed the

plaintiff to appear at CSOSA for a meeting with the OPR and when the plaintiff arrived for the

meeting he was arrested at CSOSA after Holloway called the MPD. Am. Compl. ¶¶ 6-7. In

11
addition, with respect to Spivey and Barnes, the plaintiff does not allege that their tortious

conduct occurred outside of CSOSA or outside of normal working hours. See generally Am.

Compl. Therefore, the second criterion of the Restatement § 228 is satisfied.

iii. The Defendants’ Actions Were Actuated, at Least in Part,
By a Purpose to Serve the Master

With respect to the third criterion of the Restatement § 228, the defendants’ conduct was

“actuated, at least in part, by a purpose to serve the master.” See Restatement § 228. As

previously mentioned, Lyon and Johnson mark the outer limits of a broad range of conduct by

employees that is at least partially meant to serve their employer. The defendant in Lyon was

acting, in part, to serve his employer when he attacked and raped a customer over a dispute about

payment to the employer. 533 F.2d at 651-52. The defendant in Johnson was also acting, in

part, to serve his employer when he shot a laundromat customer because the dispute arose from

the defendant’s duty to remove clothes from washing machines. 434 A.2d at 406, 408-09. Here,

the plaintiff was suspended from CSOSA because of concerns about his behavior, Am. Compl. ¶

6, and, even taking the plaintiff’s allegations as true, the defendants’ actions in removing the

plaintiff from CSOSA and highlighting his allegedly questionable behavior clearly were meant,

at least in part, to benefit CSOSA. Am. Compl. ¶¶ 7, 9. Thus the defendants’ conduct falls

within the scope of their employment. See Restatement § 228.

Because the court holds that the plaintiff has not pled sufficient facts that, taken as true,

show that the defendants acted outside the scope of their employment under the laws of the

District of Columbia, the court denies the plaintiff’s request to conduct additional discovery on

the scope of employment issue and concludes that the defendants were acting within the scope of

their employment. See Koch, 209 F. Supp. 2d at 93. Accordingly, the court substitutes the

12
United States as the sole defendant and dismisses the individual defendants with respect to

Counts I-IV. See id.

2. The Plaintiff Has Failed to Exhaust His Administrative Remedies

a. Legal Standard for Exhaustion of Administrative Remedies

The FTCA “grants federal district courts jurisdiction over claims arising from certain

torts committed by federal employees in the scope of their employment, and waives the

government’s sovereign immunity from such claims.” Sloan v. Dep’t of Housing & Urban Dev.,

236 F.3d 756, 759 (D.C. Cir. 2001) (citing 28 U.S.C. §§ 1346(b), 2674). “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) (upholding the district court’s

dismissal of an unexhausted FTCA claim for lack of jurisdiction); accord Grant v. Sec’y, U.S.

Dep’t of Veterans Affairs, 2004 WL 287125, at *1 (D.C. Cir. Feb. 4, 2004). Under the FTCA,

exhaustion occurs once a claimant has presented the appropriate federal agency with a claim

describing the alleged injury with particularity and setting forth a “sum certain” of damages, and

the agency has (1) denied the claim in writing or (2) failed to provide a final disposition within

six months of the claim’s filing. 28 U.S.C. § 2675(a); Grant, 2004 WL 287125, at *1. The

presentment requirement “allow[s] the agency to investigate and assess the strength of the claim

[and] make an informed decision whether to attempt settlement negotiations.” Grant, 2004 WL

287125, at *1 (citing GAF Corp. v. United States, 818 F.2d 901, 919-20 (D.C. Cir. 1987)).

b. The Plaintiff Did Not Exhaust His Administrative Remedies

The defendants contend that the plaintiff failed to exhaust his administrative remedies

because he did not fulfill the internal complaint procedures of CSOSA. Defs.’ Mot. at 10-11.

The plaintiff does not address this argument. See generally Pl.’s Opp’n. Accordingly, the court
13
concludes that the plaintiff has conceded this point. See Twelve John Does v. District of

Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997) (noting that arguments not addressed may be

treated as conceded).

Because the plaintiff has failed to offer any indication that he exhausted his

administrative remedies, and the exhaustion of administrative remedies is a jurisdictional

requirement, the court dismisses the plaintiff’s claims with respect to Counts I-IV. 8 See McNeil,

508 U.S. at 113.

C. Count V: Violation of Fourth and Fourteenth Amendment Rights

The plaintiff brings suit under § 1983 alleging a violation of his Fourth and Fourteenth

Amendment constitutional rights. The statute provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

This Circuit has noted that § 1983, “by [its] terms, do[es] not apply to actions against the

United States.” Hohri v. United States, 782 F.2d 227, 245 n.43 (D.C. Cir. 1986), vacated on

other grounds, 482 U.S. 64, 107; see also United States v. Timmons, 672 F.2d 1373, 1380 (11th

8
Both parties also argue, at some length, over whether the United States has waived sovereign
immunity for three of the four tort claims: false imprisonment, false arrest and malicious
prosecution. The defendants contend that the United States has not waived sovereign immunity
for those torts. Defs.’ Mot. at 6. The plaintiff counters that there is an exception for “law
enforcement officers” under the FTCA in cases which the government has waived its sovereign
immunity for those torts committed by “law enforcement officers,” and that the defendants are
indeed “law enforcement officers.” Pl.’s Opp’n at 6. Because the court dismisses the plaintiff’s
amended complaint for failure to exhaust administrative remedies, it does not reach this issue.
14
Cir. 1982) (holding that “it is well established . . . that the United States has not waived its

immunity to suit under the provisions of the civil rights statutes”).

The court has determined that the defendants were acting within the scope of their

employment as federal employees of CSOSA. See supra Part III.B.1.b. Because CSOSA is a

federal executive branch agency, Defs.’ Mot. at 1 n.1, and all four defendants are employees of

CSOSA, id. at 1, the defendants are not persons “under color of any statute . . . of any State or

Territory or the District of Columbia.” See 42 U.S.C. § 1983 (emphasis added). Because § 1983

does not apply to persons that are operating under color of statutes of the United States, see

Hohri, 782 F.2d at 245 n.43, and the defendants, as employees of CSOSA, are operating under

federal statute, see Defs.’ Mot. at 1 n.1, the plaintiff cannot assert his Fourth and Fourteenth

Amendment claims against the defendants through the lens of § 1983. See 42 U.S.C. § 1983;

Hohri, 782 F.2d at 245 n.43. Thus, the court dismisses count five of the plaintiff’s amended

complaint.

D. Count VI: Hostile Work Environment, Retaliation and Violation of Civil Rights
Claims Brought Under 42 U.S.C. § 1983

The plaintiff contends that the defendant subjected him to a hostile work environment,

retaliated against him and violated his civil rights under § 1983 because he filed an informal

EEO complaint against Gunn and a formal EEO complaint against Quander. Am. Compl. ¶ 5.

The defendants argue that the plaintiff’s workplace discrimination claims must be brought under

Title VII, not § 1983. Defs.’ Mot. at 12. The court agrees.

In passing Title VII, Congress intended to create “an exclusive, pre-emptive

administrative and judicial scheme for the redress of federal employment discrimination.”

Brown v. Gen. Servs. Admin., 425 U.S. 820, 829 (1976). “Although Brown dealt with a § 1981

15
claim, courts have since extended the Brown reasoning to reject litigants’ efforts to initiate

discrimination claims against the federal government under the Constitution or statutes other

than Title VII.” Brug v. Nat’l Coalition for Homeless, 45 F. Supp. 2d 33, 42 (D.D.C. 1999)

(dismissing discrimination claims brought under § 1983, the Fifth Amendment and the

Fourteenth Amendment against federal employees). This Circuit has “repeatedly held that

federal employees may not bring suit under the Constitution for employment discrimination that

is actionable under Title VII.” Ethnic Employees of Library of Cong. v. Boorstin, 751 F.2d 1405,

1415 (D.C. Cir. 1985) (citing Kizas v. Webster, 707 F.2d 524, 542 (D.C. Cir. 1983); Lawrence v.

Staats, 665 F.2d 1256, 1257, 1259 (D.C. Cir. 1981); Torre v. Barry, 661 F.2d 1371, 1372, 1374

(D.C. Cir. 1981); Hofer v. Campbell, 581 F.2d 975, 976, 978 (D.C. Cir. 1978); Richardson v.

Wiley, 569 F.2d 140, 141 (D.C. Cir. 1977); Morris v. Washington Metropolitan Area Transit

Auth., 702 F.2d 1037, 1039-40 (D.C. Cir. 1983)).

Because the plaintiff’s hostile work environment, retaliation and § 1983 claims arise out

of employment discrimination allegedly stemming from his filing of EEO complaints against

Gunn and Quander, see Am. Compl. ¶ 5, the defendants’ conduct is only actionable under Title

VII. The court therefore dismisses, without prejudice, the plaintiff’s complaint with respect to

Count VI. See Brown, 425 U.S. at 829; Ethnic Employees of Library of Cong., 751 F.2d at 1415.

16
 IV. CONCLUSION

For the foregoing reasons, the court grants the defendants’ motion to dismiss the

amended complaint and denies as moot the defendant’s original motion to dismiss. An Order

consistent with this Memorandum Opinion is separately and contemporaneously issued this 3rd

day of August, 2009.

RICARDO M. URBINA
United States District Judge

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