United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE SENIOR UNITED STATES DISTRICT JUDGE
Kayla Giles Coutee ("Plaintiff") appeals an Equal
Employment Opportunity Commission ("EEOC") final
agency decision that awarded her $23, 000 for disability
discrimination against defendant Robert Wilkie, Secretary of
("Defendant"). Pending before the court is
Defendant's Motion to Dismiss for Lack of Subject Matter
Jurisdiction (Docket Entry No. 9) ("Motion to
Dismiss") . For the reasons explained below,
Defendant's Motion to Dismiss will be granted.
Factual and Procedural Background
September of 2017 Plaintiff filed a complaint with the EEOC
alleging that her then-employer, the Waco Regional Benefit
Office within the Veterans Benefits Administration,
discriminated against her based on a
disability. The EEOC investigated and on October 30,
2018, issued a decision that Defendant had discriminated
against Plaintiff. On March 19, 2019, the EEOC issued a
damages decision awarding Plaintiff $23, 000 in compensatory
proceeding pro se, filed her Complaint in this action on June
17, 2019, within the 90-day filing deadline to appeal the
EEOC decision. Her Complaint asks the court to review the
compensatory damages and other relief the EEOC decision
granted her and claims she should have been awarded $300, 000
in compensatory damages. Defendant filed his Motion to Dismiss
under Rule 12(b) (1) on October 21, 2019. Defendant argues
that the court lacks subject matter jurisdiction because
Plaintiff only asks the court to review the EEOC s damages
determination, and district courts may not engage in partial
de novo review of final agency decisions. Plaintiff has not
filed a response; the response was due November 12, 2019.
Fed.R.Civ.P. 6 (a) (1), 27 (a) (3) (A); Local Rules 7.3, 7.4.
Nature of Motion and Standard of Review
Subject Matter Jurisdiction
frames his motion as a 12(b) (1) motion to dismiss for lack
of subject matter jurisdiction. Plaintiff's Complaint
states that the court has federal question jurisdiction under
28 U.S.C. § 1331. Federal question jurisdiction exists when
federal law creates the cause of action. Borden v.
Allstate Insurance Co., 589 F.3d 168, 172 (5th Cir.
2009) . The basis pled in the Complaint is "Appeal of
Final Agency Decision on Compensatory
Damages.”Because Plaintiff proceeds pro se, the
court must construe her Complaint liberally. Erickson v.
Pardus, 127 S.Ct. 2197, 2200 (2007). The substance of
Plaintiff's action is a disability discrimination claim
under the Rehabilitation Act of 1973 and Title VII of the
Civil Rights Act.
Rehabilitation Act creates a cause of action for federal
employees against whom the government discriminates on the
basis of disability. 29 U.S.C. § 791; Pinkerton v.
Spellings, 529 F.3d 513, 515 (5th Cir. 2008). The same
"remedies, procedures, and rights" set forth in
Title VII of the Civil Rights Act for other
employment-discrimination claims applies to
disability-discrimination claims under the Rehabilitation
Act. 29 U.S.C. § 794a. A federal employee must exhaust
available administrative remedies, usually with the EEOC,
before bringing an employment-discrimination suit in federal
court. Hampton v. I.R.S., 913 F.2d 180, 182 (5th
Cir. 1990) . An employee who has received a final agency
determination on the claim may file a civil action in federal
court appealing their claim. 42 U.S.C. § 2000e-169(c).
Plaintiff's claim and right to present her appeal were
created by these federal statutes and accordingly there is
federal subject matter jurisdiction over this action. See
Borden, 589 F.3d 168 at 172.
cites several cases that establish that an appeal of a final
agency decision in federal court cannot be a partial de nova
review of only the damages awarded; if an employee seeks de
nova review, liability and remedies must both be
re-tried.E.g.. Massingill v.
Nicholson, 496 F.3d 382, 384-85 (5th Cir. 2007) .
But courts have not treated an impermissible request for
partial de nova review as a jurisdictional defect. See
id. at 384, 38 6 (reversing the district court's
grant of summary judgment without mentioning jurisdiction);
Timmons v. White, 314 F.3d 1229, 1237-38 (10th Cir.
2003) (affirming the district court's grant of summary
judgment without mentioning jurisdiction); Herron v.
Veneman, 305 F.Supp.2d 64, 75-76, 79 (D.D.C. 2004)
(dismissing a claim for partial review of a final agency
decision for failure to state a claim, not lack of
jurisdiction). Because the defect in Plaintiff's
Complaint identified by Defendant is not jurisdictional, the
court will construe Defendant's Motion to Dismiss as a 12
(b) (6) motion to dismiss for failure to state a claim.
See Aldridge v. United States, Civil No.
7:06-CV-0050-R, 2006 WL 2423417, at *1 n.2 (N.D. Tex. 2006)
(construing a 12(b) (1) motion to dismiss as a 12(b) (6)
motion because the latter was a more appropriate vehicle for
the defendant's argument).
Rule 12(b) (6) Standard of Review
Federal Rules of Civil Procedure permit dismissal when a
plaintiff fails 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 formal sufficiency of the pleadings and is
"appropriate when a defendant attacks the complaint
because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001), cert. denied sub nom. Cloud v. United
States, 122 S.Ct. 2665 (2002). To defeat a motion to
dismiss a plaintiff must plead "enough facts to state a
claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).
"Detailed factual allegations" are not required at
this stage, but a complaint that establishes the grounds that
entitle the plaintiff to relief "requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do." Id. at
1959. In ruling on a Rule 12 (b) (6) motion the court must
"accept the plaintiff's well-pleaded facts as true
and view them in the light most favorable to the
plaintiff." Chauvin v. State Farm Fire
& Casualty Co., 495 F.3d 232, 237 (5th Cir.
federal-sector employee suing under Title VII may file two
types of civil actions: a suit to enforce the administrative
disposition or a de nova review of the disposition.
Massingill, 496 F.3d at 384. A suit for de nova
review requires the court to try the claim de nova for both
liability and ...