UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) CARRIE LOU EVANS , ) ) Plaintiff, ) ) v. ) C ase No. 1 7
- cv - 0 2728 (APM) ) TROY TYLER , et al., ) ) Defendant s . )

_________________________________________ ) MEMORANDUM OPINION
I. INTRODUCTION
P laintiff Carrie Lou Evans , proceeding pro se, brings this action against Defendants Troy Tyler, Tina D. Lee, and Steven Bartlett , three employees of the U.S. Patent and Trademark Office (“USPTO”)

. Plaintiff appears t o contend that Defendants falsified records that led to her firing. For the reasons that follow, this action may proceed no further.
II. BACKGROUND Defendants are all USPTO employees

. See Ex. 1 to Notice of Removal, ECF No. 2 [hereinafter Compl.], at 2 ; Defs.’ Mot. for Summ. J., ECF No. 14 [hereinafter Defs.’ Mot.], at 4.
Plaintiff claim s that Defendants “ wrongfully terminated ” her and interfered with her ability to

“ receiv [ e ] fair representation” from her union and USPTO’s Office of Equal Employment Opportunity and Diversity (“OEEOD”)

. See Compl. at 2

. T hese claims a ppear to be based on Plaintiff’s belief that Defendants doctored or falsified documents concerning her extended, unexcused absence from work between April and May 2014 , which ultimately resulted in her termination

. See Defs.’ Mot. at 1

– 3; see also Pl.’s Resp

. to Defs.’ Mot. for Summ. J. , ECF No. 17 [hereinafter Pl.’s Resp. ] , at 2

– 3

.2 At first, Plaintiff brought suit against USPTO, seeking to hold the agency responsible for its employees’ alleged wrongful conduct. S ee generally Evans v. U.S. Patent & Trademark Office (“Evans I”) , 238 F. Supp. 3d 4 (D.D.C. 2017). The court dismissed that case for lack of subject

matter jurisdiction

. Id. at 5. Plaintiff then filed this action, and Defendants initially moved to dismiss on a theory of claim preclusion. See Order, ECF No. 10, at 1

– 2. On April 5, 2018, the court denied that motion because “ Plaintiff’s case against USPTO was for lack of subject

- matter jurisdiction and therefore was not a final judgment ‘on the merits , ’” as required for claim preclusion to apply

. I d. at 3

. Thereafter, Defendants moved for summary judgment

. See Defs.’ Mot. That motion is now ripe for consideration. Defendants assert two grounds for summary judgment

. First, Defendants argue that they are not proper defendants in this action. Because Defendants were acting in their official capacit ies with respect to Plaintiff’s claims , Defendants argue that the proper defendant in this suit , depending on the claim, would be the agency head or the United States

. See id. at 4

– 6. Second, Defendants argue that the court lacks subject

- matter jurisdiction because Plaintiff failed to pursue , let alone exhaust , her administrative remedies prior to filing suit. See id. at 6

– 9. In response, Plaintiff does not address the merits of Defendants’ legal arguments ; i nstead , she makes factual arguments regarding Defendants ’ conduct

. See generally Pl.’s Resp.
III. LEGAL STANDARD
A. Motion to Dismiss for Lack of Subject
- Matter Jurisdiction Because Defendants challenge the court’s subject

- matter ju risdiction, the court construes their summary judgment motion as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). See Whiteru v . Wash. Metro. Area Transit Auth. , 258 F. Supp. 3d 175, 181

– 82 (D.D.C.3 2017). When evaluating a Rule 12(b)(1 ) motion, the court “accept[s] all [well

- pleaded] factual allegations in [the] complaint as true.” Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253

– 54 (D.C. Cir. 2005) (third alteration in original) (quoting United States v. Gaubert , 499 U.S. 315, 327 (1991)). Further, “the court may consider materials outside the pleadings ‘as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.’” Cummings v. Murphy , 321 F. Supp. 3d 92, 101 (D.D.C. 2018) (quoting Scolaro v. D.C. Bd. of Elections & Ethics , 104 F. Supp. 2d 18, 22 (D.D.C. 2000)). The plaintiff bears the burden of establishing subject

- matter jurisdiction. Id. (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992)); see also Hill v. United States , 562 F. Supp. 2d 131, 133

– 34 (D.D.C. 2008).
B. Motion for Summary Judgment To the extent that Defendants’ summary judgment motion does not implicate the court’s subject

- matter jurisdiction, the court must apply the standards set forth in Federal Rule of Civil Procedure 56. Rule 56 provides that a court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

m atter of law.” Fed. R. Civ. P. 56 (a). A dispute is “genuine” only if a reasonable fact

- finder could find for the non

- moving party, and a fact is “material” only if it is capable of affecting the outcome of litigation. Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986). In viewing the facts, t he court

“ draw [s] reasonable inferences in the light most favorable to the [non

- moving] party.” Scott v.
Harris , 550 U.S. 372, 378 (2007) (internal quotation marks omitted).
IV. DISCUSSION It is difficult to discern precisely the nature of the claims advanced by Plaintiff. Construing her complaint liberally, see Haines v. Kerner , 404 U.S. 519, 520 (1972) , she could be stating two types of claims. First, because Plaintiff cite s no statutory basis for her C omplaint and allege s that4 Defendants prevented her from receiving fair representation from her union and OEEOD , see Compl. at 2 , the C omplaint could be construed to state common law tort claim s

— specifically , tortious interference with contract and wrongful discharge in violation of public policy. See Rissetto v. Cty. Of Clinton , No. 8:15

- cv - 0720 (GTS/CFH), 2016 WL 4530473, at *8 , *36

– 37 (N.D.N.Y. Aug. 29, 2016) ( describing and refusing to dismiss one of plaintiff’s tortious interference with contract claim s , which was based on the refusal s of plaintiff’s former supervisor and union president to provide plaintiff with union representation in disciplinary proceedings ); see also Davis v. Cmty. Alts. of Wash

. , D.C., Inc. , 74 A.3d 707, 709

– 10 (D.C. 2013) (describing the tort of wrongful discharge in violation of public policy). Second, as Plaintiff previous ly “ file[d]

an informal complaint ” with OEEOD , see Defs.’ Mot., Decl. of Jessica R. Hughes, ECF No. 14

- 4 [hereinafter Hughes Decl. ] , ¶ 5, Plaintiff ’s claim s could be construed to arise under Title VII

. 1 As Defendants assert that they were acting in their official capacities , see Defs.’ Mot. at 4

– 5; Defs.’ Mot., Cert . of Daniel Van Horn, ECF No. 14

- 7, and Plaintiff does not contend otherwise, see Compl.; Pl.’s Resp

. , the court treats each claim as made against Defendants in their official capacities. See Jenkins v. Jackson , 538 F. Supp. 2d 31 , 33

– 34 (D.D.C. 2008)

. Even construing Plaintiff ’s Complaint liberally, Defendants’ M otion must be granted

.

1 In Evans I , the court found that Plaintiff’s “ wrongful termination ” claim against USPTO arose under the Civil Service Reform A ct of 1978 (“CSRA”), 5 U.S.C. § 7512. See Evans I , 238 F. Supp. 3d at 5. T he CSRA , however, does not grant a right of action for damages against individual ly

- named federal agency employees. S ee Spagnola v. Mathis , 859 F.2d 223, 229 (D.C. Cir. 1988) ( noting that Congress had “not inadvertently” omitted a damages remedy “against officials” when passing the CSRA )

. Thus, Plaintif f cannot state a CSRA claim against Defendants. Unlike the CSRA, Title VII permits actions against individual ly

- named federal employees acting in their official capacit ies because “an official capacity suit is the functional equivalent of a suit against the employer.” Jenkins v. Jackson , 538 F. Supp. 2d 31, 33 (D.D.C. 2008) (quoting Cooke

- Seals v. District of Columbia , 973 F. Supp. 184, 187 (D.D.C. 1997)). Moreover, while the CSR A generally “bar[s ] [ federal employees] from bringing workplace

related claims to federal district court, the CSRA specifically ‘preserves the rights of employees to bring suit under Title VII and other federal anti

- discrimination laws.’” Gibbs v. Jewell , 36 F. Supp. 3d 162, 167 (D.D.C. 2014) (quoting Mahoney v. Donovan , 721 F.3d 633, 635 n.4 (D.C. Cir. 2013)). Thus, given the relevant law and the facts on the current record, Plaintiff’s complaint can be construed liberally to stat e a Title VII claim distinct from the CSRA claim Plaintiff stated in her complaint against USPTO.5 A. Plaintiff’s Tort Claim s Plaintiff’s tort claim s arise, if at all, under the Federal Tort Claims Act (“FTCA”) , 28 U.S.C. § 1346(b)(1), and only then in an action against the United States. See Coulibaly v. Kerry , 213 F. Supp. 3d 93, 125 (D.D.C. 2016) ; Richardson v. Yellen , 167 F. Supp. 3d 105, 113

– 14 (D.D.C. 2016) . To bring a claim under the FTCA, a plaintiff is required to exhaust her administrative remedies , and the failure to do so deprives the court of subject

- matter jurisdiction

. See Evans I , 238 F. Supp. 3d at 5 (noting that the FTCA jurisdictionally “bars claimants from bringing suit [against the United States] until they have exhausted their ad ministrative remedies” (internal quotation mark omitted))

. According to the uncontested declarations provided by Defendants, Plaintiff has yet to
pursue any administrative remedies against them

. See Defs.’ Mot., Decl . of Stacy Long, ECF
No.14

- 3, ¶ 4 (stating that there was no record of any Merit Systems Protection Board appeal filed by Plaintiff); Hughes Decl., ¶ 5 (noting that Plaintiff fil ed an informal complaint with USPTO’s OEEOD but did not file a formal complaint, leading OEEOD to close the complaint ) ; see also Pl.’s Resp. (failing to dispute the declarations or present contrary evidence)

. Thus, t o the extent Plaintiff’s C omplaint can be construed to state a claim under the FTCA , the court dismiss es the
C omplaint for lack of subject

- matter jurisdiction for failure to exhaust administrative remedies

. B. Plaintiff’s Title VII Claim Federal employees who sue for discrimination under Title VII “must, absent unusual circumstances, timely exhaust administrative remedies before bringing suit. ” Achagazi v. Broad. Bd. of Governors , 170 F. Supp. 3d 164, 175 (D.D.C. 2016). Unlike the FTCA’s exhaustion requirement, however, Title VII’s exhaustion requirement is not jurisdictional. Niskey v. Kelly , 859 F.3d 1, 7 (D.C. Cir. 2017); see also Carter v. Wash

. Metro. Area Transit Auth. , 503 F.3d 143,6 145 (D.C. Cir. 2007)

. Thus, when a plaintiff fail s to exhaust administrative remedies in a Title VII suit, the court may properly resolve the issue on summary judgment

. See Johnson v. Veneman , 569 F. Supp. 2d 148, 158

– 59 (D.D.C. 2008) (granting the defendant’s motion for summary judgment on a Title VII claim because the plaintiff had failed to exhaust his administrative remedies ). Here, b ecause Plaintiff has not exhausted her administrative remedies , the court grant s Defendant s’ motion for summary judgment with respect to any Title VII claim.
V. CONCLUSION For the foregoing reasons, the court lacks subject

- matter jurisdiction over Plaintiff’s tort claims, and Defendants are entitled to summary judgment on any Title VII claim. Accordin gly, the court grants Defendants’ Motion a nd dismisses this action

. A separate order accompanies this Memorandum Opinion.

Dated: Octobe r 26 , 2018 Amit P Mehta United States District Judge