Bonci v. Army Fleet Support (MAG+)

Filing 32

ORDER ADOPTING 27 REPORT AND RECOMMENDATION; Mrs. Bonci's 2 Objection is OVERRULED; Army Fleet Support's 10 Motion to Dismiss, or, in the alternative, Motion for Summary Judgment, is GRANTED; Summary judgment is GRANTED to Army Fleet Support with respects to counts 1-4 of the complaint, and those counts are DISMISSED with prejudice; Counts 5-7 of the complaint (the state-law claims) are DISMISSED without prejudice; Ms. Bonci's 21 Motion to amend her complaint is DENIED as futile. Signed by Honorable William Keith Watkins on 10/5/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT 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 la in tif f , v. ARMY FLEET SUPPORT, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 1:09-CV-101-WKW [WO]

ORDER O n August 6, 2009, the Magistrate Judge issued a Report and Recommendation (" R e c o m m e n d a tio n " ) (Doc. # 27), recommending that Defendant Army Fleet Support's (" A F S " ) motion to dismiss, or, in the alternative, for summary judgment, (Doc. # 10) be g ra n te d . Plaintiff Janet A. Bonci, proceeding pro se, filed an Objection (Doc. # 29) to the R e c o m m e n d a tio n ; AFS filed a reply (Doc. # 30) to the Objection; and Ms. Bonci then filed a response (Doc. # 31) to the reply. Substantially for the reasons given by the Magistrate Judge, Ms. Bonci's Objection lacks merit. The adverse employment actions Ms. Bonci complains of occurred in 2005 and 2 0 0 6 . Regardless of whether Ms. Bonci did not obtain particular lab reports or other d o c u m e n ts until 2008, she did not timely file a charge with the Equal Employment O p p o rtu n ity Commission ("EEOC") within the required 180-day period. She argues that the la b reports show that AFS falsified the results of drug tests, and perhaps also attendance re c o rd s , in order to discipline her in 2005 or 2006. An individual falsely accused of failing

a drug test or not coming to work would be immediately aware that an error or injustice had o c c u rre d , since that person would know whether or not she had taken drugs or come to work o n the dates in question. There is thus no basis for equitable tolling of the time to file an E E O C charge until Ms. Bonci actually obtained the reports. The additional discovery Ms. B o n c i seeks could not cure this defect. A c c o rd in g ly, it is ORDERED that: (1 ) The Recommendation of the Magistrate Judge is ADOPTED; (2 ) Ms. Bonci's Objection (Doc. # 29) is OVERRULED; (3 ) Army Fleet Support's motion (Doc. # 10) to dismiss, or in the alternative for s u m m a ry judgment, is GRANTED; (4 ) Summary judgment is GRANTED to Army Fleet Support with respects to counts 1 -4 of the complaint, and those counts are DISMISSED with prejudice; (5 ) Counts 5-7 of the complaint (the state-law claims) are DISMISSED without p re ju d ic e ; (6 ) Ms. Bonci's motion (Doc. # 21) to amend her complaint is DENIED as futile. D O N E this 5th day of October, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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