Wilborn v. Wolf

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HAROLD L. WILBORN Case No.: 20cv1981-LAB (BGS)

12 Plaintiff, ORDER: 13 v. (1) DENYING EX-PARTE MOTION 14 ALEJANDRO MAYORKAS TO FILE SUR-REPLY [DKT. 49]; 15 Defendant. AND

16 (2) GRANTING MOTION TO 17 DISMISS PLAINTIFF’S AMENDED COMPLAINT [Dkt. 42] 18

19 20 Plaintiff Harold L. Wilborn, proceeding pro se, is a former employee of the 21 U.S. Custom and Border Patrol law enforcement agency (“CBP”). He brings this 22 suit against the Secretary of the Department of Homeland Security, Defendant 23 Alejandro Mayorkas (“Defendant” or “Secretary Mayorkas”), for alleged violations 24 of the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution and for 25 alleged violations of Title VII of the Civil Rights Act of 1964 (“Title VII”). Wilborn 26 claims that during his tenure with CBP, he was subjected to denials of due process, 27 social discrimination, hostile work environment, retaliation, and constructive 28 discharge. 1 On January 20, 2021, this Court granted Defendant’s unopposed motion to 2 dismiss Wilborn’s original Complaint. (Dkt. 9). Following leave to amend, Wilborn 3 filed a First Amended Complaint (“FAC”), realleging largely the same deficient and 4 conclusory allegations included in his initial pleadings. (Dkt. 28, FAC). On June 7, 5 2021, Defendant filed the instant motion to dismiss the FAC, arguing that 6 Defendant has sovereign immunity with respect to Wilborn’s constitutional claims 7 and challenging the sufficiency of Wilborn’s vaguely-pled Title VII claims. (Dkt. 42). 8 For the reasons set forth herein, the Court DENIES Wilborn’s ex parte motion to 9 file a sur-reply (Dkt. 49), and GRANTS Defendant’s Motion to Dismiss the FAC 10 (Dkt. 42). 11 I. BACKGROUND 12 Wilborn is a U.S. Navy veteran and was formerly employed by CBP for 13 approximately twenty-nine years. (FAC ¶ 42). His last position at CBP was as 14 Supervisory Law Enforcement Communications Assistant. (Id., Ex. 1 at 3). In 2010, 15 Wilborn was suspended by CBP for five days for engaging in allegedly 16 unprofessional conduct, namely making an allegedly “aggressive threat” to a 17 supervisor. (Id., Ex. 4 at 3). This suspension was later overturned by an Equal 18 Employment Opportunity Administrative Judge (“Administrative Judge”) in August 19 2013 (“EEO Decision”), who determined that the suspension was made in 20 retaliation for Wilborn’s protected activity—namely, expressing his intention to file 21 suit due to a hostile work environment. (Id., Ex. 4 at 2–3). In deeming Wilborn’s 22 conduct protected activity, the Administrative Judge ordered that backpay and 23 compensatory damages be awarded to Wilborn, all evidence of the suspension be 24 expunged from CBP records, and training on retaliatory conduct be provided to all 25 managers at the facility. (Id.). The Administrative Judge’s decision was appealed 26 and ultimately affirmed in May 2015. (Id., Ex. 13 at 6). 27 Wilborn also alleges various other adverse actions taken against him. He 28 claims that, as a “Negro American,” he was “pass[ed] over [ ] for promotions in 1 favor of white male employees . . . with less experience” five different times. (FAC 2 ¶¶ 29–30). In September 2013, Wilborn, who’d been assigned to work the midnight 3 shift for 14 years, was reassigned to the day shift in what he claims is retaliation 4 for the favorable EEO Decision issued just a month prior. (Id. ¶ 85). In October 5 2013, Wilborn’s superior, Raul Stamp, stated that Wilborn “should stop acting like 6 a pussy and grow a set of balls.” (Id. ¶ 86). Then, in October 2014, Assistant Chief 7 Patrol Agent Kathleen Scudder (“Agent Scudder”) issued a letter proposing that 8 Wilborn be suspended for 10 days due to his “lack of candor” relating to a 9 scheduling incident with one of Wilborn’s subordinates. (Id., Ex. 10 at 1–2). That 10 same month, Wilborn was placed on an Employee Proficiency Plan (“EPP). (FAC 11 ¶¶ 17–19). He claims that other “similarly situated Caucasian employees” were not 12 disciplined in the same way for such conduct. (Id. ¶ 89). The 10-day suspension 13 proposal was ultimately reduced to a one-day suspension, set to be served on 14 February 5, 2021. (Id., Ex. 12). However, because Wilborn retired on January 31, 15 2015, he never served this suspension. (FAC ¶ 46). 16 On October 7, 2020, Wilborn commenced this action against the former 17 Secretary of the Department of Homeland Security, Chad Wolf. (Dkt. 1). The 18 original Complaint, though largely unclear as to the alleged causes of action, 19 alluded to claims for violations of the Uniformed Services Employment and 20 Reemployment Rights Act (“USERRA”); discrimination claims based on race, age, 21 and disability; and claims for hostile work environment, retaliation, and constructive 22 discharge. (Id.). Defendant filed a motion to dismiss the Complaint, (Dkt. 5), but 23 Wilborn failed to file anything in response and the motion was granted, (Dkt. 9). 24 Following leave to amend, on April 28, 2021, Wilborn filed his FAC, raising new 25 constitutional due process claims, and realleging claims for racial discrimination, 26 hostile work environment, retaliation, and constructive discharge. Defendant’s 27 present motion to dismiss challenges the FAC on grounds of sovereign immunity 28 and because Wilborn’s claims are factually and legally insufficient. (Dkt. 42). 1 II. LEGAL STANDARD 2 A Rule 12(b)(6) motion tests the sufficiency of a complaint. Navarro v. Block, 3 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a complaint 4 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 5 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is facially 7 plausible when the factual allegations permit “the court to draw the reasonable 8 inference that the defendant is liable for the misconduct alleged.” Id. While a 9 plaintiff need not give “detailed factual allegations,” a plaintiff must plead sufficient 10 facts that, if true, “raise a right to relief above the speculative level.” Twombly, 550 11 U.S. at 545. “The plausibility standard is not akin to a ‘probability requirement,’ but 12 it asks for more than a sheer possibility that a defendant has acted unlawfully.” 13 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). Plausibility requires 14 pleading facts, as opposed to conclusory allegations or the “formulaic recitation of 15 the elements of a cause of action,” Twombly, 550 U.S. at 555, which rise above 16 the mere conceivability or possibility of unlawful conduct. Iqbal, 556 U.S. at 678- 17 79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare 18 recitals of the elements of a cause of action, supported by mere conclusory 19 statements, do not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not 20 require ‘detailed factual allegations,’” Rule 8 nevertheless “demands more than an 21 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 22 678 (quoting Twombly, 550 U.S. at 555). 23 III. ANALYSIS1 24 A. Fourth, Fifth, and Fourteenth Amendment Claims 25 The FAC doesn’t delineate Wilborn’s different causes of action, but it 26 27 1 In response to Defendant’s instant motion and without first obtaining leave of 28 1 appears that Wilborn is attempting to bring claims under the Fourth, Fifth, and 2 Fourteenth Amendments of the U.S. Constitution. He alleges that CBP violated his 3 constitutional right of due process by suspending him and placing him on an 4 Employee Proficiency Plan in October 2014, using “standards that [ ] invite[] 5 arbitrary enforcement of that punishment” without giving him “justice and fair notice 6 of [CBP’s] punishments.” (FAC ¶¶ 17, 22–23). Wilborn names Secretary 7 Mayorkas, the current Secretary of the Department of Homeland Security, as the 8 only defendant in this case, and though it appears this suit is brought against the 9 United States or Secretary Mayorkas in his official capacity, Wilborn’s repeated 10 citations to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 11 403 U.S. 388 (1971), suggest that his constitutional claims also extend to 12 Secretary Mayorkas in his personal capacity. 13 The Court lacks subject matter jurisdiction over Wilborn’s constitutional 14 claims because the United States has not waived its sovereign immunity. “It long 15 has been established, of course, that the United States, as sovereign, ‘is immune 16 from suit save as it consents to be sued . . . and the terms of its consent to be sued 17 in any court define that court’s jurisdiction to entertain the suit.’” United States v. 18 Testan, 424 U.S. 392, 399 (1976) (quoting United States v. Sherwood, 312 U.S. 19 584, 589–591 (1941)). A suit for damages against federal officers or employees 20 “in their official capacity is essentially a suit against the United States,” and is 21 therefore also barred by sovereign immunity absent statutory consent. Gilbert v. 22 DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Wilborn is suing Secretary 23

24 25 Dkt. 44, 45). Wilborn now requests that the Court grant him leave to file a sur-reply to Defendant’s Reply In Support of its Motion to Dismiss Plaintiff’s Amended 26 Complaint. (Dkt. 49). Wilborn’s request is DENIED, as the Court finds that further 27 briefing in this matter is both unnecessary and would result in undue delay. For purposes of this Order, the Court considers only the parties’ briefings currently on 28 1 Mayorkas in his official capacity as the Secretary of the Department of Homeland 2 Security, yet he fails to identify a waiver of sovereign immunity authorizing this 3 action against the United States. See Arnsberg v. United States, 757 F.2d 971, 4 980 (9th Cir.1984) (holding plaintiff’s damages claim for violation of his Fourth 5 Amendment rights against the United States was barred by sovereign immunity). 6 Therefore, Wilborn’s constitutional claims against the United States or Secretary 7 Mayorkas in his official capacity are barred by the doctrine of sovereign immunity. 8 See id.; Holloman v. Watt, 708 F.2d 1399, 1401–02 (9th Cir. 1983). 9 Any attempt to bring this suit against Secretary Mayorkas in his personal 10 capacity is likewise misplaced. In Bivens, the Supreme Court established an 11 implied private right of action for tortious deprivation of constitutional rights against 12 federal officials in their personal capacity. Bivens, 403 U.S. at 389. However, a 13 Bivens remedy will generally not be available “if there is an alternative remedial 14 structure present in a certain case,” which “alone may limit the power of the 15 Judiciary to infer a new Bivens cause of action.” Ziglar v. Abbasi, 137 S. Ct. 1843, 16 1858 (2017). Here, an alternative remedy is available through the Civil Service 17 Reform Act (“CSRA”), which precludes Wilborn from bringing a private cause of 18 action against Secretary Mayorkas. See Wilborn v. Johnson, 592 F. App’x 571 (9th 19 Cir. 2015) (quoting Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991)) (“The 20 district court properly dismissed Wilborn’s First and Fifth Amendment claims 21 because the Civil Service Reform Act precludes him from ‘seeking injunctive relief 22 for his asserted constitutional injury just as it precludes him from bringing a Bivens 23 action for damages.’”). The CSRA limits federal employees challenging their 24 supervisors’ “prohibited personnel practices” to an administrative remedial system. 25 If the conduct an employee challenges falls within the scope of the CSRA’s 26 “prohibited personnel practices,” the CSRA’s administrative procedures are the 27 employee’s only remedy. Orsay v. United States Dep’t of Justice, 289 F.3d 1125, 28 1128 (9th Cir. 2002) (abrogated on other grounds by Millbrook v. United States, 1 569 U.S. 50 (2013)); see also Collins v. Bender, 195 F.3d 1076, 1079 (9th Cir. 2 1999) (“[E]ven if no remedy were available to [the employee] under the CSRA, he 3 still could not bring [his] action if the acts complained of fell within the CSRA’s 4 confines.”); Saul, 928 F.2d at 835–43 (holding the CSRA precludes both 5 constitutional and common-law tort claims). As another court in this District 6 previously ruled, “[b]ecause the CSRA does not provide a private cause of action, 7 Plaintiff’s only recourse for remedying the alleged CSRA violations is through the 8 CSRA’s administrative procedures by filing a complaint with the Office of Special 9 Counsel.” Wilborn v. Napolitano, No. 11-CV-2252-IEG RBB, 2012 WL 354494, at 10 *6 (S.D. Cal. Feb. 2, 2012). 11 Wilborn’s constitutional claims are thus barred by the doctrine of sovereign 12 immunity and precluded by the CSRA. See Wilborn v. Napolitano, No. 11-CV- 13 2252-IEG RBB, 2013 WL 1222061, at *3 (S.D. Cal. Mar. 25, 2013), aff’d sub nom. 14 Wilborn v. Johnson, 592 F. App'x 571 (9th Cir. 2015) (dismissing with prejudice 15 Wilborn’s constitutional claims “to the extent Plaintiff seeks damages as barred by 16 the doctrine of sovereign immunity and precluded by the CSRA”). Because the 17 factual and legal grounds proffered in support of Wilborn’s constitutional claims 18 make it clear that he has no right to relief from this defendant in any capacity, 19 granting further leave to amend would be futile or result in undue delay. Flowers v. 20 First Hawaiian Bank, 295 F.3d 966 (9th Cir. 2002). Accordingly, the Court 21 DISMISSES Wilborn’s constitutional claims for monetary damages against 22 Secretary Mayorkas in his official or personal capacity.2 23

24 25 2 Wilborn suggests in his Opposition briefs that he may be alleging constitutional violations under 42 U.S.C. § 1983. (Dkt. 44 ¶ 24; Dkt. 45 ¶¶ 9, 11). But as 26 Defendant correctly points out, Section 1983 claims are limited to violations made 27 by state actors—not the United States or federal officials—and any such claim must necessarily be dismissed. See Morse v. N. Coast Opportunities, Inc., 118 28 1 B. Title VII Claims 2 Wilborn also appears to bring claims under Title VII of the Civil Rights Act of 3 1964, alleging that CBP’s “adverse action of discipline,” namely his suspension 4 and failure to be promoted, were motivated by race discrimination. (FAC ¶¶ 24, 5 29–30). He additionally alludes to a hostile work environment claim based on a 6 comment made to him by a colleague, (id. ¶ 86 (“[L]ine supervisor SLECA [Raul] 7 Stamp stated that the Plaintiff ‘should stop acting like a pussy and grow a set of 8 balls’ . . .”), as well as a retaliation claim based on an October 2014 letter regarding 9 a 10-day suspension proposal sent from his superior which references a prior 10 suspension deemed retaliatory by the EEOC and also a subsequent change made 11 to his established work schedule following that favorable EEOC decision (id. ¶¶ 37, 12 85). 13 Wilborn fails to sufficiently allege that he was discriminated against because 14 of his race. Under Title VII, employers are not permitted to “discriminate against 15 any individual with respect to his compensation, terms, conditions, or privileges of 16 employment, because of such individual’s race, color, religion, sex or national 17 origin.” 42 U.S.C. § 2000e-2(a)(1). To prevail on a Title VII discrimination claim, a 18 plaintiff must first establish a prima facie case of discrimination. See Vasquez v. 19 County of Los Angles, 349 F.3d 634, 640 (2004). A plaintiff may establish a prima 20 facie case by showing (1) he belonged to a protected class, (2) he was performing 21 according to his employer’s legitimate expectations, (3) he suffered an adverse 22 employment action, and (4) other employees with qualifications similar to his own 23 were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 24 802 (1973). Here, Wilborn claims he was discriminated against because he is 25 African American, (FAC ¶¶ 29–30), but as Defendant argues, Wilborn fails to 26 27 in its reliance upon § 1983 as a cause of action against alleged federal government 28 1 establish a link between his race and any adverse action taken against him. 2 Indeed, the FAC explains that the basis for the disciplinary action taken against 3 him in October 2014 was his “lack of candor,” and while he attempts to argue that 4 other “similarly situated Caucasian employees” were not similarly written up or 5 suspended, he offers no other facts to support these conclusory allegations. See 6 Twombly, 550 U.S. at 556 (“[A] plaintiff’s obligation to provide the grounds of his 7 entitlement to relief requires more than labels and conclusions, and a formulaic 8 recitation of the elements of a cause of action will not do . . .”) (internal quotations 9 marks and alterations omitted); see also Austin v. Univ. of Oregon, 925 F.3d 1133, 10 1138 (9th Cir. 2019) (“What is missing for each theory of liability are sufficient, 11 nonconclusory allegations plausibly linking the disciplinary action to discrimination 12 on the basis of [race].”). Nor can any race discrimination claim based on an alleged 13 failure to promote survive where Wilborn hasn’t demonstrated that he exhausted 14 his administrative remedies by filing a complaint alleging Title VII violations with 15 the Equal Employment Office of his agency. See Wilborn v. Napolitano, No. 11- 16 CV-2252-IEG RBB, 2012 WL 354494, at *7 (S.D. Cal. Feb. 2, 2012) (quoting 17 Sommatino v. United States, 255 F.3d 704, 709 (9th Cir. 2001)) (“In cases where 18 a plaintiff has never presented a discrimination complaint to the appropriate 19 administrative authority, the district court does not have jurisdiction over Plaintiff’s 20 Title VII claims.”) (internal quotation marks omitted). 21 Wilborn can’t maintain a claim for hostile work environment either. To prevail 22 on a hostile work environment claim under Title VII, a plaintiff must establish that 23 the workplace was “permeated with discriminatory intimidation, ridicule, and insult” 24 that is “sufficiently severe or pervasive to alter the conditions of the victim’s 25 employment and create an abusive working environment.” See Harris v. Forklift 26 Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. 27 Vinson, 477 U.S. 57, 65–67 (1986)) (internal quotation marks omitted). To 28 determine whether conduct was sufficiently severe or pervasive to violate Title VII, 1 the Court must look to all the circumstances, including the frequency of the 2 discriminatory conduct, its severity, whether it is physically threatening or 3 humiliating, whether it is a mere offensive utterance, and whether it unreasonably 4 interferes with an employee’s work performance. See Vasquez v. County of Los 5 Angles, 349 F.3d 634, 642 (2004) (internal citations and quotation marks omitted). 6 In this case, the conduct Wilborn complains about—an offensive verbal comment, 7 a schedule change, a proposed suspension, and placement on an EPP—is not the 8 type of conduct that rises to the level of hostile work environment. See Harris v. 9 Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive 10 enough to create an objectively hostile or abusive work environment—an 11 environment that a reasonable person would find hostile or abusive—is beyond 12 Title VII’s purview.”); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) 13 (“[M]ere utterance of an . . . epithet which engenders offensive feelings in an 14 employee would not affect the conditions of employment to sufficiently significant 15 degree to violate Title VII.”) (internal citations and quotation marks omitted). And 16 more importantly here, Wilborn fails to explain how such conduct is at all related 17 to the race discrimination he claims he experienced. Vasquez, 349 F.3d at 642.3 18 19 20 3 To the extent Wilborn also alleges a constructive discharge claim, that claim fails. 21 “[A] constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and 22 egregious to overcome the normal motivation of a competent, diligent, and 23 reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007) (quoting 24 Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000)) (internal quotation 25 marks omitted). “This ‘aggravated’ claim arises when plaintiff ‘presents a worst case harassment scenario, harassment ratcheted up to the breaking point.’” Torres 26 v. Nat’l Frozen Foods Corp., No. 6:20-CV-01680-MC, 2021 WL 1740245, at *5 (D. 27 Or. May 3, 2021) (citing Pennsylvania State Police v. Suders, 542 U.S. 129, 131 (2004)). Nothing of the sort is alleged here. 28 1 Finally, Wilborn cannot maintain a claim for retaliation. In order to establish 2 a prima facie case of retaliation under Title VII, Wilborn must show involvement in 3 a protected activity, an adverse employment action, and a causal link between the 4 two. Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002). Defendant argues 5 that Wilborn’s retaliation claims must be dismissed because he fails to sufficiently 6 demonstrate that any of the alleged actions taken against him were retaliatory in 7 nature. (Dkt. 42 at 17). The Court agrees. The FAC is entirely unclear as to what 8 protected activity Wilborn engaged in and for which he experienced retaliation. 9 Wilborn vaguely identifies the 10-day suspension proposal issued by Agent 10 Scudder as a basis for his claim. (FAC ¶ 28). He claims that Agent Scudder’s letter 11 referenced Wilborn’s previous suspension from 2010—later deemed by an 12 Administrative Judge to be retaliatory and made in connection with protected 13 activity. (Id.). But Wilborn doesn’t allege any facts suggesting that the purpose of 14 Agent Scudder’s suspension proposal was retaliation against Wilborn for his 15 previous activity. Indeed, the letter states independent reasons justifying a 10-day 16 suspension proposal, including Wilborn’s “lack of candor” when confronted by 17 superiors about a scheduling incident involving one of Wilborn’s subordinates. (Id., 18 Ex. 10 at 1–2). And Wilborn’s suggestion that a later change made to his schedule 19 (i.e., switching him from the night shift to the day shift) was retaliation for the 20 EEOC’s decision in his favor is likewise unconvincing where Wilborn provides no 21 context or explanation as to how such a change was at all connected to the 22 EEOC’s findings. (FAC ¶ 85). It is well established that “petty slights or minor 23 annoyances” are not actionable. Burlington N. & Santa Fe Ry. Co. v. White, 548 24 U.S. 53, 68 (2006) (“We speak of material adversity because we believe it is 25 important to separate significant from trivial harms.”). Wilborn fails to sufficiently 26 allege a retaliation claim with these threadbare allegations. 27 Wilborn’s Title VII claims are thus DISMISSED. 28 1 IV. CONCLUSION 2 Plaintiff's request to file a sur-reply is DENIED and Defendant’s Motion to 3 ||Dismiss is GRANTED. The Court recognizes that in civil rights cases, pro se 4 || plaintiffs should be afforded an opportunity to amend a complaint before the 5 ||complaint is dismissed in its entirety, unless “it is absolutely clear that the 6 deficiencies of the complaint could not be cured by amendment.” Rodriguez v. 7 || Chandler, 86 F.3d 1163 (9th Cir. 1996) (citing Noll v. Carlson, 809 F.2d 1446, 1448 8 || (9th Cir. 1987)). In this case, the Court previously provided Wilborn an opportunity 9 ||to amend these pleadings and correct the deficiencies identified by Defendant in 10 |/its motion to dismiss the original Complaint, but to no avail. The current amended 11 ||complaint still fails to state viable causes of action against Defendant and includes 12 vague, conclusory, and confusingly-pled statements of Defendant's alleged 13 || wrongdoing. Because Wilborn has previously amended his complaint but has yet 14 |/again failed to state any viable claims against Defendant, Wilborn’s claims are 15 || DISMISSED WITH PREJUDICE and without leave to amend. 16 The Clerk of Court is ordered to terminate this case. 17 IT IS SO ORDERED. 18 ||Dated: October 28, 2021 19 A Gawy- 20 Honorable Larry Alan Burns 4 United States District Judge 22 23 24 25 26 27 28