United States District Court, N.D. Ohio, Eastern Division
LILY BELVY-HOLT, Executor of the Estate of Michael B. Holt, Plaintiff,
ROBERT WILKE, ACTING SECRETARY OF VETERANS AFFAIRS, Defendant.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 4
Y. Pearson United States District Judge.
Plaintiff filed this Title VII action against the Secretary
of Veterans Affairs (“VA”) in October 2017,
challenging the sufficiency of the damages awarded to her son
by the VA on his discrimination claim. She asks the Court to
revisit the issue of damages and award Holt's Estate an
amount that more adequately reflects his lost wages and
benefits, emotional pain and suffering, attorney's fees,
and pre- and post-judgment interest.
is the executor of the Estate of Michael B. Holt
(“Holt”). Holt worked as a nurse at the VA
Medical Center. He initiated an employment discrimination
action with the Equal Employment Opportunity Commission
(“EEOC”) against the VA in January 2013, alleging
racial, gender and disability discrimination, and hostile
work environment. He died in August 2013. The VA failed to
investigate his claim within the 180-day period required by
the EEOC. In fact, they did not begin the investigation until
after Holt's death. The VA issued a decision on the
administrative claim, and Plaintiff appealed it to the
EEOC's Office of Federal Operations (“OFO”).
The OFO granted a default judgment in favor of Holt due to
the VA's failure to investigate the claim within the
180-day period. The OFO remanded the case back to the VA for
a computation of damages. The VA awarded Holt's Estate
$2, 000 in compensatory damages. Plaintiff has filed the
above-entitled action challenging the award as
“woefully inadequate.” She asks the Court to
revisit the issue of damages and order “appropriate
relief.” Complaint (ECF No. 1) at PageID #: 3, ¶
Motion at Bar
is Defendant's Motion to Dismiss (ECF No. 7) pursuant to
Fed.R.Civ.P. 12(b)(6). Defendant argues that Title VII, 42
U.S.C. § 2000e et seq., does not permit a federal
employee to seek review of just one part of the agency
decision. Pro Se Plaintiff seeks review of only the award,
but not the finding of liability. Defendant contends that
this type of review is not permitted by the statute and this
action should be dismissed. The Court has been advised,
having reviewed the record, the parties' briefs, and the
applicable law. For the reasons that follow, the Court grants
Standard for Dismissal
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
Court must take all well-pleaded allegations in the complaint
as true and construe those allegations in a light most
favorable to the plaintiff. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citations omitted). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.” Id. at 679. The factual allegations
in the complaint “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S.
at 555 (citing authorities).
other words, claims set forth in a complaint must be
plausible, rather than conceivable. Id. at 570.
“[When] the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged but it has not ‘show[n]'
‘that the pleader is entitled to relief.'”
Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). The
factual allegations in the complaint “must contain
something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of
action.” Twombly, 550 U.S. at 555 (quoting 5 C. Wright
& A. Miller, Federal Practice and Procedure § 1216,
p. 235-36 (3d ed. 2004)). In addition to reviewing the claims
set forth in the complaint, a court may also consider
exhibits, public records, and items appearing in the record
of the case as long as the items are referenced in the
complaint and are central to the claims contained therein.
Bassett v. Nat'l Collegiate Athletic Ass'n,
528 F.3d 426, 430 (6th Cir. 2008); Erie County, Ohio v.
Morton Salt, Inc., 702 F.3d 860, 863 (6th Cir. 2012).
Law and Analysis
initial matter, a party may plead and conduct her case in
person or through a licensed attorney. See 28 U.S.C. §
1654. A plaintiff may not appear pro se when interests other
than her own are at stake. Shepherd v. Wellman, 313
F.3d 963, 970 (6th Cir. 2002) (citing Iannaccone v.
Law, 142 F.3d 553, 558 (2d Cir. 1998)). Therefore, an
executor of an estate may not appear pro se when the estate
has beneficiaries and creditors other than the litigant.
Id. (citing Pridgen v. Andresen, 113 F.3d
391, 393 (2d Cir. 1997)). Plaintiff has not demonstrated that
the Estate has no creditors and she is the Estate's sole
beneficiary. Therefore, it is not clear that she can proceed
pro se on behalf of the Estate.
even if Plaintiff were able to proceed pro se, she cannot
proceed with this claim as it is pleaded. Title VII draws a
distinction between federal employee cases and private-sector
cases. Pursuant to statute and regulations, the federal
employing agency and the EEOC are empowered to enter final
orders which are binding on the employing agency. See 42
U.S.C. § 2000e-16; 29 C.F.R. § 1614.101 et seq. In
private-sector cases, the EEOC does not have the power to
issue final decisions which are binding on the employer.
EEOC decisions are binding on federal employees and agencies,
federal employee plaintiffs have two options to file suit
after obtaining a decision from the EEOC. First, if the
federal employee is unsatisfied with the EEOC decision, she
may pursue a trial de novo. Chandler v. Roudebush,
425 U.S. 840, 846-47 (1976); Scott v. Johanns, 409
F.3d 466, 469 (D.C. Cir. 2005); Abrams v. Johnson,
534 F.2d 1226, 1227 (6th Cir. 1976); Timmons v.
White, 314 F.3d 1229, 1233 (10th Cir. 2003). In a trial
de novo, the slate is wiped clean and all issues, including
liability and damages, are decided anew by the District
Court. Second, if the federal employee prevails in the
administrative process, but does not receive the promised
remedy, she may bring a civil action for enforcement of her
remedies. See Scott, 409 F.3d at 469; Herron v.
Veneman, 305 F.Supp.2d 64, 74-75 (D.D.C. 2004);
Wilson v. Pena, 79 F.3d 154, 166 (D.C. Cir. 1996);
Moore v. Devine, 780 F.2d 1559, 1563 (11th
Cir.1986). In such enforcement suits, the only question
before the Court is “whether the employing agency has
complied with the administrative disposition.” Scott,
409 F.3d at 469. See Haskins v. U.S. Dep't of the
Army, 808 F.2d 1192, 1199 n. 4 (6th Cir. 1987) (holding
that an enforcement action is valid only where a
“federal employee has received a favorable
determination at the administrative level”).
is no third option for federal employee plaintiffs under
Title VII. The statute does not recognize an avenue for a
partial de novo review, that is review of only the amount of
the award. Cook v. Geren, No. 3:07-0637, 2008 WL
686220, *13-14 (M.D. Tenn. March 7, 2008); see also Haskins,
808 F.2d at 1199 n. 4; Scott, 409 F.3d at 467; Massingill
v. Nicholson,496 F.3d 382, 384 (5th Cir . 2007);
Ellis v. England,432 F.3d 1321, 1325 (11th Cir.
2005); Morris v. Rumsfeld,420 F.3d 287, 293 (3rd
Cir. 2005). Here, Plaintiff wants to keep the finding of
liability in Holt's favor, but retry the issue of what
damages are owed. That is not an available option. Therefore,
this action is dismissed without prejudice for Plaintiff to
decide whether she wants to keep the EEOC decision she has
and collect the amount awarded to the Estate, or allow for
consideration of the entire matter de novo, knowing she may
not prevail in court on the issue of ...