Bonci v. Army Fleet Support (MAG+)

Filing 27

REPORT AND RECOMMENDATION that the 10 MOTION to Dismiss, OR IN THE ALTERNATIVE, MOTION for Summary Judgment filed by Army Fleet Support be GRANTED; Summary Judgment should be GRANTED as to claims one through four of the Complaint, and claims five through seven of the Complaint should be DISMISSED. In addition, the 21 MOTION to Amend be DENIED as futile. Objections to R&R due by 8/19/2009. Signed by Honorable Wallace Capel, Jr. on 8/6/2009. (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION J A N E T A. BONCI, P l a in tif f , v. A R M Y FLEET SUPPORT, D e f e n d a n t. ) ) ) ) ) ) ) ) )

CASE NO. 1:09cv101-WKW

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE
O n 5 February 2009, Plaintiff Janet A. Bonci (Bonci) filed a seven count Complaint a g a i n s t Defendant Army Fleet Support (AFS). (Doc. #1). On 11 February 2009, this case w a s referred to the undersigned Magistrate Judge "for action or recommendation on all p re tria l matters." (Doc. #2). On 9 April 2009, AFS filed a Motion to Dismiss, or in the a lte rn a tiv e , Motion for Summary Judgment. (Doc. #10). On 11 May 2009, Bonci filed her R e sp o n s e s. (Docs. #15 &16). On 20 May 2009, AFS filed a Reply (Doc. #19) and on 17 Ju n e 2009, Bonci filed a Sur-Reply (Doc. #20). On 1 July 2009, Bonci filed a Motion to A m en d the Complaint. (Doc. #21). F o r the reasons stated below, it is the recommendation of the Magistrate Judge that th e Motion to Dismiss, or in the alternative, Motion for Summary Judgment (Doc. #10) be G R A N T E D ; Summary Judgment should be GRANTED as to claims one through four of the C o m p lain t, and claims five through seven of the Complaint should be DISMISSED. In a d d itio n , the Motion to Amend (Doc. #21) is due to be DENIED as futile.

I.

FACTS T h e Court has carefully considered all of the pleadings, evidentiary excerpts, and

d o c u m e n ts submitted in support and in opposition to the Motion. Many of the facts su b m itte d by the parties were irrelevant to the determinations made by the Court, making it u n n e c e ss a ry for the Court to repeat them. Rather, the submissions of the parties, viewed in th e light most favorable to the non-moving party, establish the following relevant facts: B o n ci was employed by AFS in 2005 and 2006 as a Material Specialist. (Doc. #11-2 a t 2). On or before 19 March 2005, Bonci went on leave and applied for short-term disability b e n e f its . Id. at 2 & 14. Bonci was transferred to the inactive department and then returned to work on 13 June 2005. Id. O n 25 July 2005 Bonci received a Letter of Reprimand for excessive tardiness. (Doc. # 1 1 -2 at 16). Bonci made no challenge to the Letter. On 25 October 2005, Bonci received a second Letter of Reprimand for an unauthorized absence from work. (Doc. #11-2 at 16). B o n c i filed a grievance with her Union contesting this second letter of reprimand. (Doc. # 1 1 -2 at 18). O n 3 January 2006, Bonci entered an Employee Assistance Program (EAP) after te stin g positive for a controlled substance. (Doc. #11-2 at 19). Bonci returned to work on 1 7 February 2006, see AFS Return to Work Slip (Doc. #11-2 at 21), and was informed by her U n io n on 6 April 2006, that they would no longer be pursing her grievance contesting the s e c o n d Letter of Reprimand. (Doc. #11-2 at 22).

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O n 2 June 2006, Bonci received a letter from the Equal Employment Opportunity C o m m iss io n (EEOC) informing Bonci that, based on her call to the EEOC's national call c e n te r they were unable to determine whether Bonci's situation was covered by the EEOC. (D o c. #16-9). The letter asked Bonci to respond to several questions and stated that failure to do so would result in the EEOC closing its files on the matter. Id. Also, the letter advised th a t the phone call did not constitute the filing of a charge with the EEOC. Id. It does not a p p e a r that Bonci ever submitted the requested information to the EEOC. On 27 September 2006, Bonci received notice from AFS that they believed she had te s te d positive for amphetamines, a violation of the terms of her EAP agreement. See (Doc. 1 1 -2 at 27). On 5 October 2006, Bonci submitted a letter of resignation.1 (Doc. #11-2 at 28). O n 6 August 2008, Bonci filed unfair labor practice charges with the National Labor R e v ie w Board (NLRB) against the Union and AFS. See (Doc. #11-2 at 23). Those charges w e re dismissed as out of time and that ruling was upheld on appeal. Id. On 5 November 2 0 0 8 , Bonci filed a complaint with the EEOC alleging that AFS discriminated against her b ec au se of a disability. (Doc. #11-2 at 29). Bonci alleged the discrimination took the form o f AFS falsifying her drug tests. Id. On 6 November 2008, the EEOC dismissed Bonci's c o m p la in t as untimely filed. (Doc. #11-2 at 30).

Bonci maintains throughout this case that she was fired and did not resign. However, the evidentiary submissions, even viewed in a light most favorable to Bonci, establish that she resigned. It may be that she resigned before AFS could terminate her employment, but she did submit a letter of resignation, and she admits the resignation in a letter dated 23 September 2008 (Doc. #16-7 at 3). Further, there was no claim for wrongful discharge, so whether Bonci resigned or was terminated is not relevant. 3

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O n 5 February 2009, Bonci filed the present Complaint, alleging: discrimination based o n disability (Count One); gender discrimination (Count Two); harassment (Count Three); c o n tin u o u s harassment (Count Four); and state law claims of deliberate concealment (Count F ive), fraud with malicious intent to harm (Count Six), and "cause of action" (Count Seven). S e e Complaint (Doc. #1). II. S T A N D A R D OF REVIEW A lth o u g h the undersigned recommends both granting summary judgment and d ism issin g Bonci's complaint, the dismissal of Bonci's state claims is based on the Court's d e n ia l of supplemental jurisdiction. The basis for that determination is discussed below. T h u s , in this section the Court will only discuss the standard of review governing motions f o r summary judgment. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)).

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T h e party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson, 477 U.S. at 255. After the non-moving party has responded to the m o tio n for summary judgment, the court must grant summary judgment if there is no genuine is s u e of material fact and the moving party is entitled to judgment as a matter of law. See F ed . R. Civ. P. 56(c).

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III.

D IS C U S S IO N A. Summary Judgment 1. D is a b ility Discrimination (Count One)

A F S has moved for Summary Judgment based on their allegation that Bonci failed to ti m e l y file a disability discrimination claim with the EEOC prior to filing this suit. Bonci c o u n ter s that any delay in filing a claim is attributable to AFS's failure to turn over certain re c o rd s , and, thus, she is entitled to equitable tolling of the limitations period. D is a b ility discrimination claims are proper under the Americans with Disabilities Act (A D A ).2 "Timely filing a charge of discrimination is a prerequisite to bringing suit under b o th Title VII and the ADA." Maynard v. Pneumatic Products Corp. 256 F.3d 1259, 1262 (1 1 th Cir. 2001). Further, "[n]o action alleging a violation of Title VII may be brought

u n le s s the alleged discrimination has been made the subject of a timely-filed EEOC charge." A le x a n d er v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir. 2000). "An ADA plaintiff h a s the burden of proving all conditions precedent to filing suit, including the condition that [ s]h e timely filed with the EEOC." Maynard, 256 F.3d at 1262. However, "filing a timely c h a rg e of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal c o u rt, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and

The case law pertaining to Title VII of the Civil Rights Act of 1964 is relevant to case law involving claims filed pursuant to the ADA because "[i]t is settled law that, under the ADA, plaintiffs must comply with the same procedural requirements to sue as exist under Title VII of the Civil Rights Act of 1964." Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339 (11th Cir. 1999). 6

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e q u ita b le tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392 (1982). A F S has alleged that Bonci failed to timely file these charges, thus Bonci bears the b u rd e n of proving compliance with the requisite preconditions. Maynard, 256 F.3d at 1262. B o n c i admits failure to file the charges within the required time, but argues her claim is s u b je c t to equitable tolling. "In order for equitable tolling to be appropriate, the facts must show that, in the period m o re than 180 days prior to filing her EEOC charge, [Bonci] had no reason to believe that s h e was the victim of unlawful discrimination." Stewart v. Booker T. Washington Ins., 232 F .3 d 844, 853 (11th Cir. 2000). "Equitable tolling is not appropriate when the plaintiff su sp e c ts that she may been discriminated against and is generally aware of her legal right to o b ta in redress." Id. B o n c i's disability claim revolves around alleged adverse changes in her job that o c c u rre d after she returned from short term disability leave in April of 2005.3 See Complaint (D o c . #1 at 2-3). Thus, the alleged discriminatory acts in 2005 should have triggered an E E O C charge. Bonci filed her EEOC charge in November of 2008. Bonci's only argument for equitable tolling is based on what she claims are records s h e received in 2008, that "would have proven [her] innocent and ended the Grievance." (D o c . #15 at 2). Bonci submits copies of lab reports from 2005 she claims show that her

Bonci never states in her Complaint from what disability she suffers. However, in an EEOC "EAS" questionnaire dated 22 September 2008, when asked to name her disability, Bonci states that she is a drug addict. (Doc. #16-9 at 4). 7

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d ru g screening results were reported incorrectly by Prima Care and AFS. The documents B o n c i has submitted appear to be part of a lab screening report which indicate that the subject o f the tests was "positive" for Amphetamines and Methamphetamies. See Lab Results (Doc. # 1 6 -6 ). Regardless of what these lab results indicate, they do not relate to whether Bonci re c eiv e d adverse treatment as a result of her March 2005 short-term disability leave.4 F u rth e r, after providing the records this as evidence supporting her claim equitable to llin g in her Reply brief, Bonci stated that she "did not file the current charges because [of] a n y thing that took place in 2005." (Doc. #15-15 at 3). This is contrary to the face of the C o m plaint which, under count one, only alleges disability discrimination following her shortte rm disability leave in 2005. B o n c i has not met the conditions precedent to filing suit and has failed to carry her b u rde n of showing that she is entitled to equitable tolling.5 Accordingly, Defendants are e n titled to summary judgment on Count One of the Complaint. 2. G e n d e r Discrimination, Harassment, and Continuous Harassment (C o u n ts two through four).

D e f e n d a n t moves for summary judgment on these claims based on Bonci's failure to

Bonci's short-term disability in March of 2005 was not related to the failed drug tests, but rather to what she described as "very heavy and pain [sic] during menstral [sic] peroid [sic]." (Doc. #11-2 at 14). Later, in December of 2005, Bonci did file for short-term disability benefits alleging her own drug use as the illness. (Doc. #16-5 at 2). That short term disability application is not however, related to the facts of Count One. In fact the Court is not convinced Bonci has even stated a claim upon which relief may be granted. 8
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f ile charges of gender discrimination, harassment, and continuous harassment with the EEOC p rio r to making these charges in the present action. Defendant also argues that, even were th e Court to construe Bonci's EEOC claim to include charges of gender discrimination, h a ra s s m e n t, and continuous harassment, Bonci's EEOC charge was filed more than 180 days a f te r the alleged offense and it thus out of time. "[A] private plaintiff must file an EEOC complaint against the discriminating party a n d receive statutory notice from the EEOC of his or her right to sue the respondent named in the charge." Forehand v. Fl. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1 9 9 6 ) . "The purpose of this exhaustion requirement `is that the [EEOC] should have the first o p p o rtu n ity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts.'" Gregory v. Georgia D e p t. of Human Resources, 355 F.3d 1277, 1279 (11th Cir. 2004) (quoting Evans v. U.S. P ip e & Foundry Co., 696 F.2d 925, 929 (11th Cir.1983)). Thus, "[n]o action alleging a v io l a ti o n of Title VII may be brought unless the alleged discrimination has been made the s u b je c t of a timely-filed EEOC charge." Alexander v. Fulton County, Ga., 207 F.3d 1303, 1 3 3 2 (11th Cir. 2000). "EEOC regulations provide that charges should contain, among other things, `[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful em p loym en t practices.'" Id. at 1332 (quoting 29 C.F.R. § 1601.12(a)(3)). A review of B o n c i's EEOC compalint reveals nothing related to gender discrimination, harassment, or

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c o n tin u o u s harassment. As stated above, Bonci's EEOC complaint relates to her drug testing a n d her allegations that AFS falsely reported the results of the tests. Bonci claims the actions b y AFS are motivated by disability discrimination. The Court can consider Bonci's newly raised claims only if they are "like or related to , or grew out of, the allegations contained in her EEOC charge." Gregory, 355 F.3d at 1 2 7 9 -80 . Bonci's claims of gender discrimination, harassment, and constant harassment are n o t like or related to her disability discrimination claim and would not reasonably have g ro w n out of her EEOC charge. Accordingly, AFS is entitled to summary judgment on C o u n ts Two, Three, and Four of the Complaint.6 B D ism issa l of the State Law Claims (Counts Five, Six, and Seven).

A F S moves for dismissal or summary judgment of Bonci's state law claims by a lleg in g that her tort claims are preempted by § 301 of the Labor Management Relations Act, 2 9 U.S.C. § 185 (2002) and are time-barred, or in the alternative, AFS requests the Court d e c l in e supplemental jurisdiction over Bonci's state law claims. B o n c i's state law claims are titled: "Deliberate Concealment"; "Fraud with Malicious In te n t to Harm"; and "Cause of Action." See Complaint (Doc. #1 at 5-7). The Court need n o t determine whether Bonci's state claims are preempted by § 301, because the exercise of th is Court's supplemental jurisdiction would be inappropriate. Further, even were the Court to construe Bonci's EEOC complaint to include allegations of gender discrimination, harassment, and constant harassment, her EEOC c o m p la in t was untimely filed and Defendant would still be entitled to summary judgment. See supra. 10
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F o r a federal court to exercise pendent or supplemental jurisdiction over state law c la im s , "the court must have jurisdiction over a substantial federal claim and the federal and state claims must derive from a `common nucleus of operative fact.'" L.A. Draper and Son v . Wheelabrator Frye, Inc., 735 F.2d 414 (11th Cir. 1984) (quoting Jackson v. Stinchcomb, 6 3 5 F.2d 462, 470 (5th Cir. 1981) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1 9 6 6 )) ) . The exercise of supplemental jurisdiction is discretionary. Id. at 726. "If the f e d e ra l claims are dismissed prior to trial, Gibbs strongly encourages or even requires d is m is s a l of the state claims." L.A. Draper and Son, 735 F.2d at 428. In view of the Court's determination that AFS is entitled to summary judgment on all o f Bonci's federal claims, Bonci's pendent state law claims in Counts Five, Six, and Seven a re due to be dismissed. Gibbs, 383 U.S. at 726 ("[I]f the federal claims are dismissed prior to trial . . . the state claims should be dismissed as well."); see also Ray v. Tennessee Valley A u th o rity , 677 F.2d 818 (11th Cir. 1982). C. M o tio n to Amend Complaint.

O n 1 July 2009, Bonci filed a Motion to Amend Complaint (Doc. #21). In her M o tio n , Bonci requests permission to add Advanced Toxicology Network, Primecare, and IA M Machinist Union Local Lodge 2003 as defendants in this action and add Conspiracy (C o u n t Eight) and Conspiracy to Commit Fraud (Count nine) counts to the complaint. A tta c h ed to the Motion is a copy of a proposed Amended Complaint. The Amended C o m p la in t merely adds facts involving the proposed additional defendants in Counts Five

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a n d Six of the original Complaint. While "leave to amend is `freely given when justice so requires,' it is `not an a u to m a tic right.'" Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008) (quoting

F e d .R .C iv .P . 15(a) (2006) and Faser v. Sears, Roebuck & Co., 674 F.2d 856, 860 (11th Cir. 1 9 8 2 )). "A district court may, in the exercise of its inherent power to manage the conduct o f litigation before it, deny such leave where there is substantial ground for doing so, such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure d e f ic ie n c ie s by amendments previously allowed, undue prejudice to the opposing party by v irtu e of allowance of the amendment, [and] futility of amendment." Id. (internal quotations o m i tt e d ) . T h e Court finds that the amendment would be futile. "Leave to amend a complaint is futile when the complaint as amended would still be properly dismissed or be immediately s u b je c t to summary judgment for the defendant." Cockrell v. Sparks, 510 F.3d 1307, 1311 (1 1 th Cir. 2007) (citing Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir.2004). T h e Court has already determined that, based on the grant of summary judgment as to counts o n e through four of the complaint, Bonci's remaining state court claims are due to be d is m i s se d . To the extent this proposed amended complaint would add facts, parties, and c o u n ts to the state law claims, it would not change the determination that this Court should d e n y supplemental jurisdiction. Accordingly, Bonci's Motion to Amend is due to be denied.

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IV.

CONCLUSION For the above stated reasons it is the RECOMMENDATION of the Magistrate Judge

th a t the Motion to Dismiss, or in the alternative, Motion for Summary Judgment (Doc. #10) b e GRANTED; Summary Judgment should be GRANTED as to claims one through four of the Complaint, and claims five through seven of the Complaint should be DISMISSED. In a d d itio n , the Motion to Amend (Doc. #21) be DENIED as futile. Further, it is O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a t io n on or before 19 August 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which the party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on

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S ep tem b er 30, 1981). D o n e this 6th day of August, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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