Plaintiff filed a Response on May 6, 2005, and Defendant filed a Reply on May 23, 2005. Plaintiff also

1

filed a Sur-Reply on June 7, 2005. As Defendant does not object to this filing, the Court considers it in determining

the Motion. 

Plaintiff’s Complaint must be evaluated in light of the fact that Plaintiff is a pro se litigant and therefore 2

should not be held to the same standards of pleading as an attorney; Plaintiff’s pleadings and briefs should be

construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that allegations in a pro se

complaint are to be held to a less stringent standard); SEC v. AMX, Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993)

(recognizing that courts “must construe [a pro se plaintiff's] allegations and briefs more permissively”). As such, the

Court considers Plaintiff’s Responses to the Magistrate Judge’s Questionnaires in construing her Complaint. 

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

SHEILA ROGERS, §

§

Plaintiff, § CIVIL ACTION NO.

§ 3:04-CV-2403-P

v. §

§

ARMY/AIR FORCE §

EXCHANGE SERVICE, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER 

Now before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint, filed March

29, 2005. After considering the parties’ arguments, the pleadings, and the applicable law, the Court 1

GRANTS in PART and DENIES in PART Defendant’s Motion. 

I. Factual and Procedural Background

On November 8, 2004, pro se Plaintiff Sheila Rodgers initiated this lawsuit by filing a

Complaint against her former employer, the Army and Air Force Exchange Service (“AAFES”).2

Plaintiff generally avers that she was subjected to a hostile work environment at AAFES. (Resp.

to Mag. Judge’s Quest. of 1/14/05 at 8.) Plaintiff claims that as a result of this hostile work

 

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environment, she suffered from stress and depression to the extent that she required medical

attention. (Id. at 13.) Plaintiff further claims that she had a telephone hearing with representatives

of the Department of Labor and AAFES’ insurance company regarding her mental condition. (Id.)

Plaintiff asserts that although the Department of Labor ordered AAFES to pay her medical

compensation for her treatment, AAFES’ insurance company denied her claims for compensation.

(Id.) 

Plaintiff also complains about her Pay for Performance (“PFP”) Assessment, which was

presented to Plaintiff by her supervisor on December 6, 1999. (Resp. to Mag. Judge’s Quest. of

12/14/04 at 6, 13.) Plaintiff alleges that the PFP unfairly rated Plaintiff “Not Promotable,” and as

a result, Plaintiff was subsequently not promoted to twelve positions for which she applied. (Resp.

to Mag. Judge’s Quest. of 1/14/05 at 3, 8.) The first of these non-promotions occurred on October

19, 1999, and Plaintiff was continually not promoted through April 13, 2000. (Resp. to Mag.

Judge’s Quest. of 12/14/04 at 6, 15, 17.) Plaintiff initially contacted an Equal Employment

Opportunity (“EEO”) Counselor regarding her PFP and non-promotions on April 14, 2000. (Id. at

15; Def.’s App. at 4-6.) Then on July 19, 2000, she filed a formal EEO Complaint. (Def.’s App.

at 12-13.) Plaintiff generally stated in her EEO complaint, “I feel AAFES has violated my

opportunities for advancement within the organization, [sic] I also feel management was aware and

intentional discrimination [sic].” (Id.) In a section inquiring as to the relief Plaintiff sought,

Plaintiff specified that, among other things, she wanted her “non-promotional status removed from

file.” (Id. at 13.) 

Plaintiff now makes claims for (1) discrimination and harassment in violation of Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C § 2000e-16; (2) defamation; and (3) “denial

 

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 The administrative judge’s Order addressed a motion to which Plaintiff responded, and her response was

3

taken into consideration. (Def.’s App. at 18.)

Page 3 of 9

of compensation [of] medical benefits.” AAFES moves to dismiss Plaintiff’s claims for lack of

jurisdiction under 12(b)(1) and failure to state a claim under 12(b)(6).

II. Discussion

In defense of her claims, Plaintiff does not respond to Defendant’s Motion on the merits.

Instead, she complains of other matters surrounding the lawsuit. The Court preliminarily addresses

her concerns. 

First, Plaintiff complains that she was not informed of the cancellation of a hearing set by

an administrative judge in the underlying Equal Employment Opportunity Commission (“EEOC”)

proceedings. (Resp. at 2, 4.) Prior to the hearing setting that Plaintiff references, the administrative

judge on Plaintiff’s EEOC case disposed of her claims by Order. (Def.’s App. at 2, 17-22.) As 3

such, the hearing was no longer necessary. Plaintiff was mailed a copy of the Order; she simply did

not understand that because her claims were dismissed, the hearing was no longer necessary. (See

Resp. at 4.) Thus, Plaintiff’s complaint that she was not informed of the hearing’s cancellation is

of no significance to this Court.

Second, Plaintiff asks the Court to appoint her legal counsel. (Sur-Reply at 3.) Plaintiff

previously moved for the appointment of counsel on November 8, 2004. In an Order issued January

19, 2005, Magistrate Judge Jeff Kaplan denied the motion without prejudice and instructed Plaintiff

that she could reurge her motion after the Court ruled on dispositive motions. (Order of 1/19/05.)

Accordingly, the Court finds Plaintiff’s current request premature. 

Third, Plaintiff asserts that Defendant served several important documents to the wrong

address intentionally. (Resp. at 1.) Defendant replies that its mailing error was inadvertent and

 

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Page 4 of 9

Plaintiff has no evidence that Defendant’s mailing error was purposeful. (Reply at 1-2.) Defendant

further asserts that Plaintiff failed to show that she was prejudiced by Defendant’s error. (Id. at 2.)

The Court determines that Plaintiff was not prejudiced by Defendant’s error. Plaintiff ultimately

received all the relevant documents, and she was given sufficient opportunity to respond. Hence,

Plaintiff’s is not entitled to relief on this basis. Having addressed Plaintiff’s concerns, the Court

proceeds to determine Defendant’s Motion on the merits. 

A. Title VII Claims

Defendant contends that Plaintiff’s Title VII claims should be dismissed because (1) Plaintiff

failed to file suit against the proper party defendant and (2) Plaintiff failed to exhaust her

administrative remedies. (Mot. at 4-6.) 

The proper party defendant in a Title VII action is the head of the department, agency, or

unit. 42 U.S.C. 2000e-16(c). Thus, in a Title VII case involving AAFES, a plaintiff may file suit

against either the Secretary of Defense or the Secretary of the Army and the Secretary of the Air

Force jointly. Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988). As Plaintiff filed suit

against AAFES rather than the Secretary of Defense or the Secretary of the Army and the Secretary

of the Air Force jointly, she has sued the wrong party. See id. Moreover, even if Plaintiff had sued

the correct party, her claims would be dismissed as a matter of law because she failed to exhaust

administrative remedies. 

A federal employee must exhaust administrative remedies as a condition precedent to

bringing suit under Title VII. Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992). To exhaust

administrative remedies, a federal employee must inter alia contact an EEO counselor within 45

(forty-five) days of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1); Teemac v. Henderson,

 

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 In so holding, the Court is mindful that Title VII was designed to address only “ultimate employment 4

decisions,” not “every decision made by employers that arguably might have some tangential effect upon those

ultimate decisions,” Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995), and generally, a low performance review

does not constitute an adverse employment action. See Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528,

532 n.2 (5th Cir. 2003) (per curiam) (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997)).

However, courts have recognized that in certain circumstances, a low performance review may constitute an adverse

employment action. See, e.g., Ellis v. Crawford, No. Civ.A . 3:03CV2416D, 2005 WL 525406, at *11-12 (N.D.

Tex. Mar. 3, 2005). In the case at hand, Plaintiff’s PFP functioned as more than a mere evaluation; it directly

reflected a decision by her employer that she should not be promoted. The record reflects that every non-selection

Plaintiff received referred to the “Not Promotable” status indicated on Plaintiff’s PFP. (Def.’s App. at 5.) Thus, it

appears that Plaintiff’s PFP more than tangentially caused her non-selections. Accordingly, the Court concludes that

Plaintiff’s low performance review may be properly characterized as the adverse employment decision that triggered

the applicable forty-five (45) day period upon Plaintiff’s notification. 

Moreover, Plaintiff failed to exhaust administrative remedies with respect to her hostile work environment 5

claim because she did not include this claim in her EEO Complaint. Only claims which would have been reasonably

included in an EEOC investigation into a plaintiff’s EEO Complaint may be part of a subsequent lawsuit. Dollis, 77

F.3d at 781. Plaintiff’s EEO Complaint would not have alerted the EEOC to her hostile work environment claim

Page 5 of 9

298 F.3d 452, 454 (5th Cir. 2002). Time periods prescribed by Title VII , such as this 45 (forty-five)

day period, commence running when a plaintiff is notified of a discriminatory decision, not when

the consequences of the decision become most painful. See Delaware State College v. Ricks, 449

U.S. 250, 258 (1980) (holding that the relevant inquiry is when the employer “established its official

position-- and made that position apparent” to the plaintiff).

Plaintiff failed to contact an EEO counselor within 45 (forty-five) days of the relevant

discrimination. Plaintiff’s last non-promotion occurred on April 13, 2000, just one day before she

contacted the EEO counselor regarding her PFP and non-selections. However, because Plaintiff’s

PFP notified her that she would not be promoted, Plaintiff should have contacted an EEO counselor

within 45 (forty-five) days of receiving the PFP in December 1999. As Plaintiff did not contact the

EEO Counselor until April 2000, more than three months after she received the PFP, she may not

maintain claims for discrimination based on her PFP or her non-selections. Additionally, there is

4

no record whatsoever of Plaintiff having contacted an EEO Counselor regarding the alleged hostile

work environment. Accordingly, Plaintiff’s allegations of discrimination and harassment are

5

 

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(See Def.’s App. at 12-13), and thus, it is reasonable that the EEOC would not have included it in their investigation.

Page 6 of 9

hereby dismissed. 

B. Tort Claims

Plaintiff also seeks to hold Defendant liable for her PFP and non-selections through state law

defamation claims. (Resp. to Mag. Judge’s Quest. of 1/14/05 at 3, 12.) However, Title VII supplies

the sole method of redress for federal employees complaining of acts of employment discrimination.

Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996) (citing Brown v. General Servs. Admin., 425

U.S. 820, 835 (1976) and Rowe v. Sullivan, 967 F.2d 186, 189 (5th Cir. 1992)). Thus, where

challenged actions are encompassed by the remedial framework of Title VII, federal employees may

not seek an end-run around Title VII’s administrative requirements by re-alleging their

discrimination claims as tort claims. See Pfau v. Reed, 125 F.3d 927, 932-34 (5th Cir. 1997),

reinstated by 167 F.3d 228 (1999); Hampton v. IRS, 913 F.2d 180, 182-83 (5th Cir. 1990). 

Plaintiff’s allegations of defamation arise out of the same facts as her claim for

discrimination. Plaintiff specifically alleges that her PFP and non-selections were discriminatory.

(See Resp. to Mag. Judge’s Quest. of 12/14/04 at 6, 9, 13, 15.) As such, the defamation Plaintiff

complains of constitutes the type of workplace discrimination subject to redress under Title VII, and

it cannot afford an independent ground of relief. In other words, because Plaintiff’s defamation

claims are preempted by Title VII, she cannot pursue them as tort claims of defamation. As noted,

Plaintiff did not pursue her administrative remedies with respect to the allegedly discriminatory PFP

and non-selections. Therefore, Plaintiff’s defamation claims based on the PFP and non-selections

are dismissed. Given this disposition, the Court does not find it necessary to address Defendant’s

 

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arguments regarding the Federal Tort Claims Act and the Civil Service Reform Act. 

C. Medical Compensation

Finally, Defendant contends that the Court must dismiss Plaintiff’s claim for “denial of

compensation [of] medical benefits” because it lacks subject matter jurisdiction under the

Longshore and Harbor Workers’ Compensation Act (“LHWCA”). 

Defendant AAFES is a nonappropriated fund instrumentality of the United States.

Honeycutt, 861 F.2d at 1349 n.3. Employees of nonappropriated fund instrumentalities are entitled,

under 5 U.S.C. § 8171, to workers’ compensation under terms of the LHWCA. Moreover, 5 U.S.C.

§ 8171 provides that compensation under the LHWCA is exclusive and in lieu of all other remedies

for covered injuries. See also 33 U.S.C. § 905(a) (providing that LHWCA liability is exclusive);

Traywick v. Juhola, 922 F.2d 786, 787-88 (11th Cir. 1991) (same). 

Defendant argues that Plaintiff’s claim should be dismissed because the LHWCA does not

provide district courts with jurisdiction to review a compensation order. However, it does not

appear to the Court that Plaintiff asks for review of her compensation order. Rather, Plaintiff alleges

that AAFES has failed to comply with a compensation order. According to Plaintiff, the Department

of Labor ordered AAFES to pay her medical compensation for her treatment, but AAFES’ insurance

company denied her claims for compensation. (Resp. to Mag. Judge’s Quest. of 1/14/05 at 13.) The

Court construes this complaint as a request for enforcement of a compensation order. 

Congress has granted the Department of Labor exclusive jurisdiction to adjudicate claims

under the LHWCA. 33 U.S.C. § 919(a) (“[T]he deputy commissioner shall have full power and

authority to hear and determine all questions in respect of [a LHWCA] claim.”). However, as

delineated under § 918(a) and § 921(d), district courts have a limited role in enforcing compensation

 

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Page 8 of 9

orders. See 33 U.S.C. §§ 918(a), 921(d). A district court may enforce an “effective” award of

benefits under § 918(a), and a district court may award a final award of benefits under § 921(d). Id.

The distinction between the two sections was recently and aptly discussed in Nowlin v. Eastern

Associated Coal Corporation, 266 F. Supp. 2d 502 (N.D. W.Va. 2003). Therein, the court

explained, among other things, that 

Under § 918(a), if an employer fails to make a payment within thirty days of 

the date it is due, a claimant may apply to the District Director for a

“supplementary order” to declare the amount in default. 33 U.S.C. § 918(a). A

claimant may then file this order with a district court and obtain judgement for 

that amount . . . In contrast to the provisions of § 918(a), § 921(d) does not 

require a claimant to first obtain a supplementary order from a District 

Director . . . .” 

Id. at 504-05. See also Vincent v. Consol. Operating Co., 17 F.3d 782 (5th Cir. 1994) (“The scope

of the district court’s inquiry under § 921(d) is limited to answering two questions: first, was the

compensation order made and served in accordance with law, and second, has the employer failed

to comply with it?”). 

Plaintiff has not filed a supplementary order as required by § 918(a), and therefore, she

cannot state a claim under § 918(a). However, it appears that Plaintiff may seek enforcement by this

Court under § 921(d), which does not require that Plaintiff file a supplementary order. Therefore,

the Court does not find dismissal of this claim appropriate at this stage of the proceedings. 

IV. Conclusion 

For the foregoing reasons, the Court GRANTS in PART and DENIES in PART Defendant’s

Motion to Dismiss Plaintiff’s Complaint. Plaintiff maintains her claim for compensation of medical

benefits. Plaintiffs other claims are hereby DISMISSED with PREJUDICE. The following

summary judgment briefing schedule is hereby established:

 

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1) Within sixty (60) days after entry of this Memorandum Opinion and Order, the

parties shall file their Motions for Summary Judgment, Memorandum in Support

thereof, and any other papers ancillary to such motions. 

2) Within thirty (30) days after service of the Motion for Summary Judgment, the

parties shall file their Response, and any other papers ancillary to such Response.

The Response shall not exceed twenty-five (25) pages.

3) Within twenty (20) days after service of the Response, the parties shall file their

Reply. The Reply shall not exceed ten (10) pages.

IT IS SO ORDERED.

Signed this 28 day of July 2005. th

_________________________________

JORGE A. SOLIS

UNITED STATES DISTRICT JUDGE

 

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