NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0506n.06
No. 16-2192
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 29, 2017
DEBORAH S. HUNT, Clerk
KYISHA JONES, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
JEH JOHNSON, et al., )
)
OPINION
Defendants-Appellees. )
)
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Kyisha Jones appeals
the dismissal of her twenty-four count complaint alleging violations of constitutional, federal,
and state law. For the reasons discussed below, we AFFIRM the district court’s judgment as to
Counts Two through Twenty-Four, but REVERSE the district court’s judgment dismissing
Count One, an official-capacity claim against the Secretary of the Department of Homeland
Security alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2.
I. BACKGROUND
A. Jones’s Employment with CBP
Jones has been a U.S. Customs and Border Protection (CBP) Officer since 2003 and
classified as a CBP Enforcement Officer since 2007. R. 15 (Amended Compl. at ¶ 16–18) (Page
ID #218). In June 2011, Jones was denied a position as a Supervisory CBP Officer. Id. at
No. 16-2192, Kyisha Jones v. Jeh Johnson et al.
¶¶ 38–39 (Page ID #220). DHS filled five Supervisory CBP Officer openings at that time and,
according to Jones, CBP promoted four white male employees and one white female employee.
Id. at ¶ 44 (Page ID #221). When Jones asked why she did not receive the promotion, she was
told that it was because she had a suspension on her record. Id. at ¶ 40 (Page ID #220). Jones
received a five-day suspension in 2007 for failing to follow a supervisor’s order. Id. at ¶ 24
(Page ID #219). In August 2011, DHS filled additional Supervisory CBP Officer openings from
the same pool of applicants who had applied for the June 2011 promotion, and again Jones did
not receive the promotion. Id. at ¶¶ 42–43, 53 (Page ID #221). DHS filled two openings at this
time, promoting one African-American male employee and one African-American female
employee. Id. at ¶ 44 (Page ID #221).
The African-American male employee who received the promotion in August 2011 also,
like Jones, had a suspension on his record. Id. at ¶ 45 (Page ID #221). The promoted employee
was suspended for three days in 2009 for failing to report outside employment. R. 21 (Blanchard
EEO Decl. at ¶ 11) (Page ID #392). Jones alleges that their offenses were comparable. R. 15
(Amended Compl. at ¶ 46) (Page ID #221). Jones states that, “According to the June 21, 2004
U.S. Customs and Border Protection Table of Offenses and Penalties, there is no difference in
the severity between a category E (Plaintiff’s) and a category P (African-American male’s)
offense.” Id. CBP Port Director Roderick Blanchard, on the other hand, considered the
promoted employee’s violation to be technical violation, but did not consider Jones’s violation to
be a technical violation. R. 21 (Blanchard EEO Decl. at ¶ 11) (Page ID #392). Blanchard stated
that CBP would have approved the promoted officer’s request to perform outside work if he had
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submitted a timely request. Id. Blanchard said that at the time of Jones’s suspension, she lacked
leadership skills, but he also expressed his opinion that Jones had recently shown significant
progress in this area. Id.
On September 7, 2011, Jones filed an EEOC charge alleging sex discrimination. R. 15
(Amended Compl. at ¶ 54) (Page ID #222). On December 27, 2011, the EEOC notified Jones
that it had completed its investigation and that she could request either a hearing or a final
agency decision. Id. at ¶ 55 (Page ID #222). She requested a final agency decision. Id. at ¶ 58
(Page ID #222). On March 13, 2012, the EEOC issued a final decision concluding that CBP did
not discriminate against Jones based on her sex, but Jones did not find out about the decision
until a year later. Id. at ¶¶ 59, 63, 71 (Page ID #222–23).
In the interim, in June 2012,1 Jones again applied for a promotion to supervisory CBP
officer. Id. at ¶ 65 (Page ID #223). She was again denied the position. Id. According to Jones,
CBP promoted “primarily white males to fill these available positions.” Id. at ¶ 66 (Page ID
#223).
In March 2013, Jones contacted the EEOC to amend her charge to include allegations of
race discrimination and retaliation. Id. at ¶ 67 (Page ID #223). That is when she found out that
the EEOC had issued a final decision concluding that CBP did not discriminate against Jones
based on her sex. Id. at ¶ 71 (Page ID #223). When she received the final agency decision, she
“became aware for the first time that CBP defended her gender discrimination allegations by
1
As discussed below, by this point Jones was on paid administrative leave and being
investigated for fraud and cross-border smuggling. Her administrative leave began on January
31, 2012.
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basically describing her as a stereotypical, angry black female.” Id. at ¶ 178 (Page ID #235).
Based on this defense, Jones filed a second EEOC charge on April 9, 2013 alleging sex and race
discrimination (she also appealed the decision on her first EEOC complaint). Id. at ¶¶ 75, 175
(Page ID #224, 234). She alleges that she did not become aware of the basis for the second
(April 9, 2013) charge until she contacted the EEOC about her first (September 7, 2011) charge
because that is when she received the final agency decision for the first charge and learned that
CBP had defended itself by, she alleges, stereotyping her.
Jones then received a final agency decision dismissing the second charge. Id. at ¶ 180
(Page ID #235). She appealed on July 26, 2013 and September 5, 2013, and received a decision
affirming the final agency decision on February 27, 2014. Id. at ¶¶ 180–81 (Page ID #235).
B. Investigation for Fraud and Smuggling
While Jones was pursuing a promotion, she was also a target of a smuggling
investigation. Alexander McLellan, a Special Agent with the Department of Homeland
Security’s Office of Inspector General, learned that in 2006 Jones was allegedly the victim of
identity theft. R. 15 (Amended Compl. at ¶¶ 32, 33, 80) (Page ID #219, 224). According to
Jones, someone fraudulently incurred one million dollars of debt in her name. She alleges that
the creditors relieved her from this debt. McLellan interviewed Jones about identity theft for the
first time in December 2009. Id. at ¶¶ 77, 80 (Page ID #224).
McLellan interviewed Jones again in December 2011. Id. at ¶¶ 81–82 (Page ID #224).
During the second interview, McLellan questioned Jones about cross-border smuggling and
accused her of being part of a smuggling ring. Id. at ¶ 84 (Page ID #224). He said that an
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No. 16-2192, Kyisha Jones v. Jeh Johnson et al.
informant claimed that a black, female, approximately fifty-year-old CBP officer named “Kisha”
was involved in smuggling. Id. at ¶¶ 85–86 (Page ID #224–85); see also R. 21-5 (McLellan
Decl. at ¶ 4) (Page ID #410).2 According to McLellan’s Declaration, his “investigation also
revealed that the group responsible for smuggling drugs across the border . . . was at the same
time, recruiting a younger black female CBP officer.” R. 21-5 (McLellan Decl. at ¶ 4) (Page ID
#410–11.) According to Jones, during the interview, “McLellan indicated that the informant
stated that ‘a curvaceous, middle-aged woman’ was helping them with their smuggling.” R. 15
(Amended Compl. at ¶ 86) (Page ID #225). Jones alleges that McLellan “falsified facts,
including that an informant indicated that ‘Kisha’ at the border assisted a cartel in smuggling
across the border.” Id. at ¶ 85 (Page ID #224). She also denies that the physical description
matches her, and points out that her name is Kyisha, not Kisha (although presumably she intends
to emphasize that her name is not Keisha). Id. at ¶¶ 87, 89 (Page ID #225). Jones alleges that
McLellan said he would seek an arrest warrant for fraud/identity theft if she did not tell him
about the drug smuggling, and that he failed to inform her of her rights during the interview. Id.
at ¶¶ 91–92 (Page ID #225).
McLellan continued to investigate Jones’s reported identity theft. According to
Defendants, he learned that Jones had signed affidavits of occupancy for two different properties
(one in West Bloomfield and one in Detroit), each stating that the property would be her primary
residence. On one application she indicated that her income was $15,000/month and on the other
2
McLellan’s declaration says that an FBI informant indicated that the CBP officer
involved with cross-border smuggling was named “Keisha,” not “Kisha” as Jones says in her
Amended Complaint. R. 21-5 (McLellan Decl. at ¶¶ 3–4) (Page ID #410).
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No. 16-2192, Kyisha Jones v. Jeh Johnson et al.
she indicated that her income was $8,000/month. R. 40 (Defs.’ Mot. to Dismiss and for Summ. J
at 8–9) (Page ID #1052–53). On each application, she indicated that she was employed as the
Vice President of Operations for a different company. Id. (Page ID #1052–53). She received
mortgages for both of these properties. Id. (Page ID #1052–53). McLellan submitted an
affidavit to support a criminal complaint. R. 15 (Amended Compl. at ¶ 113) (Page ID #228).
The U.S. Attorney’s Office for the Eastern District of Michigan filed a sealed criminal
complaint against Jones on January 23, 2012 alleging various fraud crimes. Id. at ¶¶ 111–12)
(Page ID #228); R. 40 (Defs.’ Mot. to Dismiss and for Summ. J at 9) (Page ID #1053) (citing
Compl. in Case No. 1:12-mj-30064). Jones alleges that McLellan provided false testimony in his
affidavit and suppressed favorable information. R. 15 (Amended Compl. at ¶ 114–17) (Page ID
#228). On January 25, 2012, CBP instructed Jones to report to the Office of Inspector General,
where McLellan arrested her. Id. at ¶¶ 127–28 (Page ID #229). Jones alleges that McLellan told
her that the government would unseal the complaint against her if she did not give him
information about cross-border smuggling. Id. at ¶ 130 (Page ID #230). The next day, she
appeared before a magistrate judge, and was processed and released; that day, the complaint was
unsealed. Id. at ¶¶ 136–40 (Page ID #230). On January 31, 2012, CBP placed Jones on paid
administrative leave. Id. at ¶ 144 (Page ID #231). On February 10, 2012, the United States filed
a motion to dismiss the criminal complaint without prejudice, stating that the government needed
more time to investigate. Id. at ¶¶ 149–50 (Page ID #232).
Later, the State of Michigan pursued felony charges against Jones. McLellan provided
documentation about Jones’s alleged mortgage fraud to the West Bloomfield police. Id. at ¶ 195
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(Page ID #237). McLellan interviewed Jones again on May 29, 2014. Id. at ¶ 198 (Page ID
#237). On July 17, 2014, the West Bloomfield Police Department notified Jones that it had a
warrant for her arrest, and on July 18, Jones turned herself in. Id. at ¶¶ 200–01 (Page ID #237).
Jones alleges that the West Bloomfield police department did not conduct an independent
investigation, but relied on McLellan. Id. at ¶ 207 (Page ID #238). Jones entered a nolo
contendere plea on September 18, 2015, see Appellee Br. at 19 (citing R. 40-1 (Michigan v.
Jones Judgment) (Page ID #1121–23)), but Jones says that, as of the filing of her brief on
October 4, 2016, the case is ongoing, see Appellant Br. at 27.
In November 2013, Jones filed a complaint with the United States Office of Special
Counsel (OSC) alleging that McLellan targeted African Americans, misused his authority, and
falsely arrested Jones. Id. at ¶ 183 (Page ID #235). OSC found that McLellan did not violate
any policies. Id. at ¶ 190 (Page ID #236). In June 2014, Jones filed a second complaint about
McLellan with OSC alleging that McLellan targeted her because of her race and in retaliation for
filing an EEOC charge. Id. at ¶ 226 (Page ID #240). In September 2014, OSC informed Jones
that it was closing her complaint. Id. at ¶ 231 (Page ID #240).
According to Jones, as of the date her brief was filed, she remained on administrative
leave. Defendants state that Jones was suspended indefinitely effective February 14, 2015.
Appellee Br. at 20 (citing R. 40-2) (Suspension Letter at 2) (Page ID #1126).
C. Procedural History
Jones filed her initial Complaint in the district court on May 27, 2014. R. 1 (Compl.)
(Page ID #1–54). Jones later filed an Amended Complaint with counts alleging violations of
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No. 16-2192, Kyisha Jones v. Jeh Johnson et al.
Title VII, constitutional law, and state law. R. 15 (Amended Compl. at 27–66) (Page ID #241–
80). Defendants filed a Motion to Dismiss and For Summary Judgment on Plaintiff’s Amended
Complaint. R. 40 (Defs.’ Mot. to Dismiss and for Summ. J) (Page ID #1023–1136). In an order
dated August 19, 2016, the district court granted the Defendants’ Motion to Dismiss on all
claims, specifying that it was granting the motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), rather than the motion for summary judgment. R. 49 (Op. and Order
Granting Mot. to Dismiss and for Summ. J at 1 n.1, 49) (Page ID #1520, 1546).
II. TITLE VII SEX-DISCRIMINATION CLAIM
The district court erred by dismissing Jones’s Title VII sex-discrimination claim for
failure to state a claim on which relief can be granted. Jones stated a plausible claim of
discrimination and a plausible claim that she exhausted her administrative remedies as to some
aspects of her claim. Dismissal under Rule 12(b)(6) is inappropriate if a complaint “state[s] a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, 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.” Id. at 555 (internal quotation marks omitted) (alteration in original).
First, Jones stated a plausible claim of sex discrimination. “[A] plaintiff with a
discrimination claim based on a failure to promote must demonstrate that (1) she is a member of
a protected class; (2) she applied for and was qualified for a promotion; (3) she was considered
for and was denied the promotion; and (4) an individual of similar qualifications who was not a
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No. 16-2192, Kyisha Jones v. Jeh Johnson et al.
member of the protected class received the job at the time plaintiff’s request for the promotion
was denied.” Hicks v. SSP Am., Inc., 490 F. App’x 781, 783 (6th Cir. 2012).
There is no dispute that Jones is a woman; that in June 2011, she applied for and was
denied a position as Supervisory CBP Officer; that she was qualified for the position; or that she
was considered for the position. The only disputed element is the fourth. Jones has stated a
plausible claim that a man of similar qualifications received the promotion when Jones was
denied. When Jones asked why she did not receive the promotion in June 2011, she was told that
it was because of her suspension. At the time, she accepted this explanation. Then, in August
2011, DHS filled additional supervisory CBP officer openings from the same pool of applicants
that applied for the promotion in June 2011. In the August 2011 round, an African-American
male employee who also had a suspension on his record did receive the promotion. Because
Jones did not receive the promotion and a male candidate who also had a suspension on his
record did receive the promotion, it is facially plausible that Jones’s sex was a factor in CBP’s
decision not to promote her. Indeed, Jones has provided a somewhat detailed explanation for
why sex discrimination is a plausible explanation for CBP’s failure to promote her—noting that
the promoted employee’s suspension was more recent than her suspension, alleging that their
violations were of comparable severity, and also pointing out her otherwise “stellar annual
performance evaluations.” R. 15 (Amended Compl. at ¶ 21, 45–46) (Page ID #218, 221).
Second, Jones stated a plausible claim that she exhausted her administrative remedies as
to some, but not all, aspects of her claim. In this case, there are three rounds of promotions at
issue: June 2011, August 2011, and June 2012. Jones has stated a plausible claim that she
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No. 16-2192, Kyisha Jones v. Jeh Johnson et al.
exhausted her administrative remedies as to the August 2011 and June 2011 rounds, but not the
June 2012 round. “A person seeking to bring a discrimination claim under Title VII in federal
court must first exhaust her administrative remedies.” Randolph v. Ohio Dep’t of Youth Servs.,
453 F.3d 724, 731 (6th Cir. 2006); see also McFarland v. Henderson, 307 F.3d 402, 406 (6th
Cir. 2002). To properly exhaust administrative remedies, a complainant must initiate contact
with the EEOC within forty-five days of the alleged discrimination. 29 C.F.R. § 1614.105.
Jones filed her first EEOC charge on September 7, 2011, within forty-five days of the
August 2011 round of promotions. Jones exhausted her administrative remedies as to the August
2011 round of promotions.
Because it is at least plausible that the failure to promote Jones during the June 2011 and
August 2011 rounds of promotions constitutes one continuing violation, Jones has stated a
plausible claim that she exhausted her administrative remedies as to the June 2011 round of
promotions as well as the August 2011 round of promotions. The key question as to the June
2011 round of promotions is whether the June 2011 was a promotion process separate and
distinct from the August 2011 round, or whether the June 2011 round was part of a single
Summer 2011 promotion process that included two rounds or stages. In National RailRoad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that a plaintiff “can
only file a charge to cover discrete acts that ‘occurred’ within the appropriate time period” and
that “discrete discriminatory acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.” Morgan, 536 U.S. at 113–14. It also clarified that “failure
to promote” constitutes a discrete discriminatory act. Id. at 114. However, at least as it applies
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No. 16-2192, Kyisha Jones v. Jeh Johnson et al.
to the facts of this case, Morgan leaves open the question of what constitutes a single “failure to
promote.” CBP may have failed to promote Jones twice, once in each round of promotions. On
the other hand, CBP may have failed to promote Jones only once if CBP engaged in a unitary
process over the course of Summer 2011 of promoting employees to Supervisory CBP Officers.
Resolving this issue depends on the specific facts about the promotion process(es), including
whether CBP treated them as two separate promotion processes or one process that it carried out
in two stages. Accordingly, at the motion to dismiss stage, it would be premature to dismiss
Jones’s allegation of sex discrimination as to the June 2011 round of promotions.
As to the June 2012 round of promotions, Jones did not exhaust her administrative
remedies. Jones cannot plausibly argue that the June 2012 round is part of the same promotion
process as the June 2011 round of promotions, and cannot argue that she exhausted her
administrative remedies as to the June 2012 round by filing an EEOC charge on September 7,
2011 (several months before the alleged violation occurred). And Jones’s April 9, 2013 EEOC
charge did not timely exhaust her administrative remedies, nor did her March 2012 contact with
the EEOC. Finally, as discussed more fully below, she did not timely amend her complaint to
include allegations related to the June 2012 round of promotions.
Therefore, we conclude that the district court erred by dismissing Jones’s sex-
discrimination claim as to the June 2011 and August 2011 rounds of promotions. Jones stated a
plausible claim of sex discrimination and a plausible claim that she exhausted her administrative
remedies as to the June 2011 and August 2011 rounds of promotions. However, Jones did not
exhaust her administrative remedies as to the June 2012 round of promotions. Having
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No. 16-2192, Kyisha Jones v. Jeh Johnson et al.
erroneously determined that Jones’s claim should be dismissed under the Rule 12(b)(6) standard,
the district court did not consider whether Defendants’ motion for summary judgment should be
granted. Because the district court did not consider Defendants’ motion for summary judgment,
we will not consider it, either. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 446 (6th Cir.
2012) (“[I]t is the general rule . . . that a federal appellate court does not consider an issue not
passed upon below.”) (alteration in original).
III. TITLE VII RACE-DISCRIMINATION AND RETALIATION CLAIMS
Jones did not properly exhaust her administrative remedies as to her Title VII race
discrimination and retaliation claims. As noted above, to bring a discrimination claim under
Title VII, a plaintiff must first exhaust her administrative remedies. McFarland, 307 F.3d at 406.
A complainant 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.” 29 C.F.R. § 1614.105(a). A complainant may add additional allegations
while the EEOC is in the process of investigating: “A complainant may amend a complaint at
any time prior to the conclusion of the investigation to include issues or claims like or related to
those raised in the complaint.” 29 C.F.R. § 1614.106(d). The only provision for amending the
complaint after the investigation has concluded requires the permission of the administrative
judge. Id.
Jones argues that she exhausted her race-discrimination claim because in March 2013 she
sought to amend her September 2011 charge to include race discrimination. Jones attempted to
add a retaliation claim to her September 2011 charge at the same time, and in the same way, that
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she attempted to add a race-discrimination claim. She argues that her attempt to amend her
charge is sufficient for exhaustion because she did not receive the March 2012 notification of the
final agency decision and, at the time she sought to amend, thought her charge was still pending.
Jones’s argument misunderstands the rule. Jones received notice that the EEOC had completed
its investigation on December 27, 2011. The rule states that “[a] complainant may amend a
complaint at any time prior to the conclusion of the investigation.” 29 C.F.R. § 1614.106(d)
(emphasis added). Jones does not dispute that that the EECO completed its investigation in
December 2011 or that she received notice that EEOC had completed its investigation. Jones
filed a second EEOC charge on April 9, 2013, more than forty-five days after the allegedly
discriminatory conduct.
Therefore, Jones never amended her September 2011 EEOC charge to include claims of
race discrimination or retaliation. Jones did not exhaust her administrative remedies as to her
race-discrimination or retaliation claims, and the district court properly dismissed these claims.
IV. CONSTITUTIONAL-TORT CLAIMS
A. Claims against Johnson
Jones brought constitutional-tort claims against Jeh Johnson in his official capacity as
then-Secretary of the Department of Homeland Security (DHS). Jones’s complaint requested
damages as a remedy for her official-capacity constitutional-tort claims. Lawsuits seeking
damages from the United States or federal agencies as a remedy for constitutional violations are
prohibited. See FDIC v. Meyer, 510 U.S. 471, 484–86 (1994). Jones points out that she seeks
equitable relief as well as damages, but does not point us to any authorities supporting her
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argument that she can seek equitable relief for her claims. Therefore, the district court properly
dismissed Jones’s constitutional-tort claims against Johnson in his official capacity with DHS.
B. Claims against McLellan
Jones also brought constitutional-tort claims against McLellan in his individual capacity,
which is proper under Bivens. See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). However, because Jones fails to state a plausible claim for
relief on any of these claims, the district court properly dismissed them.
First, Jones alleges that McLellan violated her right to due process because, she says,
McLellan failed to inform her of her Miranda rights. R. 15 (Amended Compl. at 32) (Page ID
#246). Failure to inform someone of her Miranda rights is not generally a due-process violation.
See Chavez v. Martinez, 538 U.S. 760, 772, 777 (2003).
Second, Jones alleges that McLellan violated her right to equal protection. R. 15
(Amended Compl. at 35) (Page ID #249). In support of this claim, Jones alleges that, “[t]o
bolster his allegations, Defendant McLellan falsified facts, including that an informant indicated
that ‘Kisha’ at the border assisted a cartel in smuggling across the border.” Id. at ¶ 85 (Page ID
#224). She does not provide any facts to support her assertion that McLellan fabricated this tip.
This allegation is a “mere conclusory statement[],” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
that fails to “state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570.
Third, Jones alleges false arrest, failure to investigate, and malicious prosecution. In
support of these allegations, Jones says that McLellan lied and withheld exculpatory evidence
and that she never committed any fraud. R. 15 (Amended Compl. at ¶ 387, 434, 466–68) (Page
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ID #258, 262, 265). Jones does not allege plausible evidence that McLellan lied. In fact, Jones
pleaded nolo contendere to fraud charges in state court. And she does not dispute that she filled
out two different mortgage applications asserting inconsistent facts, i.e. stating that she would
occupy both houses as her primary residence and providing inconsistent information about her
income and employment. Jones’s contention that McLellan lied is a “mere conclusory
statement[].” Iqbal, 556 U.S. at 678.
Fourth, Jones alleges abuse of process. R. 15 (Amended Compl. at 39) (Page ID #253).
Even putting aside the fact that the Sixth Circuit has not recognized a Bivens claim for abuse of
process, Jones does not state a cognizable claim of abuse of process. Jones’s allegation is that
McLellan decided to investigate fraud because he actually wanted information about cross-
border smuggling. However, McLellan did not violate the law by investigating one crime with
the intention of obtaining information about another. See Painter v. Robertson, 185 F.3d 557,
569–70 (6th Cir. 1999).
Finally, Jones alleges negligent infliction of emotional distress and intentional infliction
of emotional distress. R. 15 (Amended Compl. at 56–58, 62–64) (Page ID #270–72, 276–78).
Jones fails to state cognizable Bivens claims for infliction of emotional distress. Bivens
addresses violations of constitutional rights, see Bivens, 403 U.S. at 396, not state-law torts like
negligent and intentional infliction of emotional distress.
Therefore, the district court properly dismissed each of Jones’s constitutional-tort claims
against McLellan in his individual capacity. We affirm the district court’s judgment dismissing
Jones’s constitutional-tort claims against Johnson, DHS and McLellan.
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V. STATE-LAW TORT CLAIMS
Jones also brought state-law tort claims against Johnson in his official capacity, alleging
negligent infliction of emotional distress and intentional infliction of emotional distress. First,
pursuant to the Federal Tort Claims Act (FTCA), the United States is the only proper defendant
for these claims. 28 U.S.C. § 2679(b)(1). Jones cannot bring these tort claims against Johnson
in his official capacity or DHS.
Second, “[i]n order for a person to file a tort claim under the FTCA, it is required that
[s]he 1) give written notice of a claim sufficient to enable the agency to investigate the claim and
2) place a value (or ‘sum certain’) on the claim.” Glarner v. U.S. Dep’t of Veterans Admin.,
30 F.3d 697, 700 (6th Cir. 1994); see also 28 U.S.C. § 2401(b); 28 U.S.C. § 2675. Jones does
not dispute that she never presented the claim in writing to DHS, which is the appropriate federal
agency. See 28 C.F.R. § 14.2(b)(1). Instead, she argues that the complaints she filed with the
OSC satisfy the exhaustion requirement. Although Jones makes arguments explaining why
submitting a complaint to OSC should satisfy the “written notice” prong of the exhaustion
requirement, she does not allege that her OSC complaint placed a monetary value on the claim,
which is necessary to satisfy the “sum certain” prong of the notice requirement. Glarner,
30 F.3d at 700 (“We believe that Glarner’s filing met the first requirement, for it gave the agency
adequate notice to investigate the claim. . . . However, it is clear that Glarner did not place a sum
certain on his claim. This requirement, while technical, is a prerequisite for filing a FTCA claim
in this circuit.”). Jones did not place a sum certain on her claim, and consequently did not meet
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the exhaustion requirement. Therefore, we affirm the district court’s judgment dismissing
Jones’s state-law tort claims for failure to exhaust.
VI. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment dismissing Counts
Two through Twenty-Four, REVERSE the district court’s judgment dismissing Count One, and
REMAND the case to the district court for further proceedings consistent with this opinion.
17