Coppett v. Tennessee Valley Authority et al

Filing 29

MEMORANDUM OPINION AND ORDER that defendant's motion for partial judgment onthe pleadings is GRANTED in part and DENIED in part and it is ORDERED that thefollowing claims are DISMISSED with prejudice: (1) plaintiff's Rehabilitation Act clai ms based on the 2003 failure to promote and the 2006 demotion; (2) plaintiff's claim for outrage (Count Three of his complaint); and (3) all claims against defendants Tennessee Valley Authority and Tom Kilgore; the parties are directed to proceed to discovery on all remaining claims; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/11/2012. (AHI, )

FILED
2012 Sep-11 AM 08:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JOHNNY COPPETT,
Plaintiff,
vs.
TENNESSEE VALLEY
AUTHORITY, et al.,
Defendants.

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Civil Action No. CV-11-S-4227-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Johnny Coppett, filed this case on December 15, 2011, asserting
claims for violations of Sections 501 and 504 of the Rehabilitation Act of 1973, 29
U.S.C. §§ 791, 794, and a supplemental state law claim for outrage, against the
following defendants: his employer, the Tennessee Valley Authority (“TVA”); Tom
Kilgore, the “head” of TVA; Dennis Bottorff, Chairman of the Board of Directors of
TVA; and Marilyn A. Brown, Mike Duncan, Tom Gilliland, William Graves, Barbara
S. Haskew, Richard Howarth, Neil McBride, and William B. Sansom, the members
of the Board of Directors of TVA. All individual defendants are sued in their
respective official capacities only.1 The case currently is before the court on
defendants’ motion for partial judgment on the pleadings.2 Upon consideration of the
1

See doc. no. 1 (Complaint).

2

Doc. no. 21.

motion, briefs, and pleadings, the court concludes the motion should be granted in
part and denied in part.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) provides that: “After the pleadings are
closed — but early enough not to delay trial — a party may move for judgment on the
pleadings.” Fed. R. Civ. P. 12(c) (2008).
“Judgment on the pleadings is appropriate only when the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” Horsley v.
Feldt, 304 F.3d 1125, 1131 (11th Cir. 2002) (quoting Moore v. Liberty National Life
Insurance Co., 267 F.3d 1209, 1213 (11th Cir. 2001) (internal marks omitted)).
Stated differently, “[j]udgment on the pleadings is proper when no issues of material
fact exist, and the movant is entitled to judgment as a matter of law.” Ortega v.
Christian, 85 F.3d 1521, 1524 (11th Cir. 1996). When reviewing such a motion, the
court is required to accept the facts alleged in the complaint as true, and to view them
in the light most favorable to the nonmoving party. Swerdloff v. Miami National
Bank, 584 F.2d 54, 57 (5th Cir. 1978).3
II. ALLEGATIONS OF PLAINTIFF’S COMPLAINT

3

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.
2

Plaintiff began working for TVA in 1983. Through continued education,
training and competent job performance, he was promoted throughout his career.4
Plaintiff began training to become an electrical craftsman in 1991, and he became a
certified electrical craftsman, also sometimes referred to as a “technician,” in 1993.5
Plaintiff completed training to become a Level III Nuclear Electrical Technician in
March of 2003. He completed 99% of Level IV training, but TVA failed or refused
to promote him to either of those levels. Instead, plaintiff was promoted to a Level
II Nuclear Electrical Technician in March of 2003.6
Plaintiff was diagnosed with Multiple Sclerosis (“MS”) in August of 2003. He
informed TVA management officials of his medical condition, and that his doctors
had restricted him from performing field work. Consequently, plaintiff was assigned
to perform administrative duties, including performing work order closures.7 He was
promoted to foreman for work order closures in January of 2006, a position that he
understood to be permanent and that paid a $68,510.00 annual salary.8
Plaintiff suffered an attack of MS in early 2006 and was on medical leave for
several months. While plaintiff was still on leave, in April of 2006, TVA demoted
4

Complaint, at ¶ 7.

5

Id. at ¶ 8.

6

Id. at ¶ 9.

7

Id. at ¶ 10.

8

Id. at ¶ 11.
3

him from foreman back to a Level II Nuclear Electrical Technician, and his annual
pay was reduced to $58,060.00.9

Plaintiff filed a grievance of disability

discrimination with his union. The grievance was resolved in December of 2006,
when plaintiff was placed in an instructor position that paid a yearly salary of
$68,510.00, with the possibility of a later salary increase to $73,040.00. Plaintiff also
understood that the instructor position would be permanent.10
Plaintiff was demoted back to a Level II Nuclear Electrical Technician on June
25, 2008, and his yearly salary was reduced to $61,900.00. The reason provided for
the demotion was that he was unable to stand for eight hours every day, and TVA
needed instructors who could stand for eight hours. Later, however, TVA informed
plaintiff that the reason for his demotion was his failure to sign up for the “instructor
pool,” despite the fact that plaintiff did not know about the sign-up until after his
demotion. Plaintiff verbally expressed his interest in continuing as an instructor and
his willingness to undergo any necessary training, but TVA informed him he could
not work as an instructor because he could not stand for eight hours.11 Plaintiff
believes TVA did not have any legitimate reason for removing him from the

9

Id. at ¶ 12.

10

Complaint, at ¶ 13.

11

Id. at ¶ 14.
4

instructor position.12
On a date not specified in plaintiff’s complaint, plaintiff filed an EEO claim for
disability discrimination based on TVA’s failure to promote him to a Level III
Nuclear Electrical Technician despite his qualification for the position, as well as on
his demotion from the foreman and instructor positions.13
Plaintiff also alleges that he was retaliated against for engaging in federally
protected activity when he was forced to take 311.5 hours of annual leave and 168
hours of sick leave pending an investigation in May, June, July, and August of 2009.
He was first told that the investigation was related to his MS medication, but he later
discovered that a different reason was given for the investigation. However, plaintiff
did not explain in his complaint the different reason later provided. Plaintiff claims
that all allegations made against him were false and were eventually proven to be
groundless.14
Plaintiff continues to work for TVA as a Level II Nuclear Electrical Technician
performing work order closures. He even works 12-hour shifts as needed.15 Other
less experienced and less skilled employees perform the same administrative job

12

Id. at ¶ 15.

13

Id. at ¶ 16.

14

Id. at ¶ 17.

15

Id. at ¶ 18.
5

duties as plaintiff, but those employees are paid as Level III Nuclear Electrical
Technicians because they are not disabled.16
Plaintiff alleges that he is a qualified individual with a disability, because he
had a physical impairment that substantially limited one or more of his major life
activities, had a record of such an impairment, and/or was regarded as having such
an impairment.17 At all relevant times, he was otherwise qualified to perform the
essential functions of his job, with or without accommodations.18 However, TVA
failed to accommodate plaintiff’s disability by failing or refusing to promote him to
Level III Nuclear Electrical Technician even though he was qualified for the position,
by failing or refusing to permit him to perform his jobs as Nuclear Electrical Work
Order Closures Foreman and Instructor, all with or without accommodation, and by
failing to engage in the interactive process. TVA was aware of plaintiff’s medical
condition, yet failed and/or refused to accommodate plaintiff because of his actual or
perceived disability.19
Based on these factual allegations, plaintiff asserts claims for disability
discrimination under Sections 501 and 504 of the Rehabilitation Act.20 He asserts that
16

Complaint, at ¶ 19.

17

Id. at ¶ 20.

18

Id. at ¶ 21.

19

Id. at ¶ 22.

20

Section 504 is the only section that prohibits discrimination under federal programs. See
6

TVA breached its obligation “to be a model employer of handicapped persons,”21 that
it failed to “properly assess the essential functions of the job in question and to
determine whether plaintiff could perform these functions with or without reasonable
accommodation,”22 and that he was damaged by defendants’ actions “in that he was
caused to suffer discrimination based solely on his disability, emotional distress, loss
of employment wages and benefits, and loss of opportunities for career
advancement.”23 Plaintiff also asserts a supplemental state law claim for outrage,
which he supports by alleging that “defendants conducted themselves in a manner
towards Plaintiff that was so extreme and outrageous as to be beyond all bounds of
common social decency,” that “[i]t was reasonably foreseeable that this conduct
would result in the infliction of mental and emotional distress upon the Plaintiff,” and
that he was “damaged by this conduct in that he was caused to suffer mental and
emotional distress.”24
As relief for defendants’ alleged violations, plaintiff requests a declaratory
judgment that his rights have been violated; an injunction requiring TVA to place him
29 U.S.C. § 794(a). Section 501 requires federal agencies to develop and administer an affirmative
action plan for individuals with disabilities. See 29 U.S.C. § 791(b). Although it is not entirely clear
from the language of plaintiff’s complaint, plaintiff apparently is asserting a claim for defendants’
failure to adopt an affirmative action plan.
21
22

Complaint, at ¶ 27.
Id. at ¶¶ 28, 33.

23

Id. at ¶¶ 30, 34.

24

Id. at ¶¶ 36-38.
7

in the Nuclear Electrical Work Order Closures Foreman position on a permanent basis
with reasonable accommodations, restore all benefits and privileges he lost as a result
of his demotion, refrain from further disability discrimination, and develop and
implement an affirmative action plan to protect individuals with disabilities; lost
wages and benefits; compensatory and punitive damages; costs, expenses, and
attorney’s fees; and any other appropriate relief.25
III. DETAILED HISTORY OF ADMINISTRATIVE PROCEEDINGS
A.

Plaintiff’s 2008 Complaint
On August 6, 2008, plaintiff requested counseling at TVA’s EEO office due

to disability discrimination occurring in June of 2008 and on July 7, 2008.
Specifically, plaintiff reported to the EEO counselor that, on July 7, 2008, Ronald H.
Rogers, the Manager of Maintenance & Modifications at Browns Ferry Nuclear
Power Plant, discriminated against him because of his MS when he did not promote
plaintiff back to the position of Instructor, which caused plaintiff to remain at a lower
rate of pay than if he had been promoted. Plaintiff also complained that, in June of
2008, he was denied the opportunity to attend Instructor Training because of his
MS.26
25

Id. at 9-11 (Prayer for Relief).

26

See doc. no. 22 (defendants’ brief in support of motion for partial judgment on the
pleadings), at Exhibit 1 (EEO Counselor’s Report). While a court generally may not consider
matters outside the pleadings when ruling on a motion for judgment on the pleadings, see Fed. R.
8

Plaintiff filed a formal EEO complaint on October 6, 2008. There, he added
the following allegations of disability discrimination:
An additional issue is that I was demoted from a Foreman’s
position to a Level II Craftsman while I was on sick leave from January
2006 to July 2006. Grievance attempts were resolved through some
kind of negotiation between the local IBEW and TVA’s human
resources which resulted in me accepting the position of Instructor/
Scheduler at Instructors’ pay scale at the BFTC.
Next, even though I had completed greater than 90% of Level 4
training, I never received Level 3 Craftsman promotion and/or pay due
to my disability.
As one can see, these are additional counts of discrimination and
these kinds of acts need to terminate immediately.27
TVA’s EEO office sent plaintiff a letter on October 15, 2008, stating that it was
accepting for investigation plaintiff’s claim that he was denied the opportunity to
attend Instructor training on July 7, 2008, resulting in a decrease in his pay.
However, the EEO office refused to accept plaintiff’s claim that he did not receive
Level III pay in 2004, and his claim that he was demoted from a Foreman’s position
to Level II Craftsman when he was on sick leave from January to July 2006. Those
claims were dismissed as untimely, because plaintiff did not raise them within fortyCiv. P. 12(d), it is appropriate to consider the record of administrative proceedings in the context of
a motion challenging the plaintiff’s exhaustion of administrative remedies. The court may do so
without converting the motion for judgment on the pleadings into a motion for summary judgment.
See, e.g., Tillery v. U.S. Dept. of Homeland Security, 402 F. App’x 421, 423 (11th Cir. 2010); Horne
v. Potter, 392 F. App’x 800, 802 (11th Cir. 2010).
27

Doc. no. 22, Exhibit 2 (Equal Employment Opportunity Complaint), at 4.
9

five days of their occurrence.28
On February 26, 2009, plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”).29 The ALJ entered an order on July 2, 2009, remanding the
claim to TVA’s EEO office for a final decision due to plaintiff’s failure to comply
with the ALJ’s Scheduling Order.30 TVA’s EEO office entered a final decision on
July 29, 2009, finding no discrimination.31 Plaintiff appealed TVA’s decision to the
United States Equal Employment Opportunity Commission (“EEOC”), which held
on September 20, 2011 that TVA properly dismissed plaintiff’s first two claims as
untimely, and that plaintiff had failed to establish discrimination with respect to his
claims about the Instructor position.32
B.

Plaintiff’s 2009 Complaint
On September 24, 2009, plaintiff sought counseling with TVA’s EEO office

after learning on August 24, 2009 that he had been placed on “non-work non-pay”
status as a result of disability discrimination.33 As a remedy, plaintiff requested
“reimbursement for every hour of [annual leave] and [sick leave] taken during the

28

Doc. no. 22, at Exhibit 3 (Notice of Receipt, Partial Acceptance, and Partial Dismissal).

29

Doc. no. 22, at Exhibit 4 (Request for Hearing).

30

Doc. no. 22, at Exhibit 5 (Notice from ALJ).

31

Doc. no. 22, at Exhibit 6 (Final Agency Decision).

32

Doc. no. 22, at Exhibit 7 (EEOC Decision).

33

Doc. no. 22, Exhibit 8 (EEO Counselor’s Report), at 2.
10

timespan in question and compensation for every hour of overtime missed from May
28, 2009, to approximately June 28, 2009 (or when the outage was completed).”34
TVA management indicated that it did not wish to participate in informal conciliation
efforts because the information plaintiff had provided was too vague.35
Plaintiff filed a formal complaint with TVA’s EEO agency on October 29,
2009, alleging disability discrimination and reprisal. To support his complaint, he
stated:
The reason I lost so much [annual leave] and [sick leave] is
outlined below. This EEO Complaint is directly related to a May 18,
2009, Employment Grievance I attempted to file with IBEW Local #558
Job Stewar[d] Wayne N. Willis. The Employment Grievance was titled
“Unfair Management Practices & Reverse Discrimination.” The
grievance identified that on May 15, 2009, I learned that my coworker,
whom I had worked with off and on in performing administrative duties
(work order closures) for several years, had an unspecified medical
constraint which like me prevented her from performing all required
duties of a Level III Electrical Craftsman. This coworker was never
demoted to a Level II Craftsman like me. However, she was allowed to
perform Admin work with me but compensated at a Level III Craftsman
Pay rate. This is an act of Unfair Management Practices and since my
coworker is an African American female, this appeared to constitute an
act of reverse discrimination.
Upon presenting the Employment Grievance to the above
identified Job Stewar[d], he declined to accept it for filing and refused
to sign a receipt for accepting it. Next, he did want to keep a copy for
his records and to show the IBEW Local #558 Business Agent, so I
34

Id.

35

Id. at 3.
11

granted his request and gave the Job Stewar[d] a copy of the May 18,
2009, Employment Grievance. I discussed pursuing the EEO route and
our meeting then adjourned. A short time later, I went looking for the
Job Stewar[d] because I had another question to ask him. As I looked
out the window of the West entrance of the Maintenance Building, I
observed the Job Stewar[d] meeting with my female coworker and she
was reading what appeared to be the copy of the Employment Grievance
that I had given him several moments earlier. I believe that this act in
allowing my coworker the opportunity to read my Employment
Grievance resulted in a chain of events that led up to my Nuclear
Unescorted Access Security Clearance being suspended. I suspect that
several personnel may have participated in achieving the requirements
needed for suspension of my Nuclear Unescorted Access Security
Clearance because this required documented data to be filed to
accomplish this objective with the overall hopes in terminating my
employment with TVA. These suspicions were confirmed when the
psychologists that I was required to meet with told me that a couple of
coworkers and a supervisor/manager had filed these reports against me.
However, the contract physicians and psychologists had a different
prognosis upon examining me.
In summary, one can clearly see the overall objective because of
my disability was to remove me from M.E.G. Work Order Closures via
the Behavior Observation Program by filing bogus Behavior
Observation Reports and hoping that it would terminate my employment
with TVA. If they had been successful in terminating me, this probably
would have opened many doors of opportunities for some people.36
Plaintiff requested reimbursement of each hour of annual leave and sick leave that
was depleted, compensation for every hour of overtime he missed between May 28
and June 28, 2009, retroactive placement in the Level III Craftsman Pay range, and

36

Doc. no. 22, Exhibit 9 (Equal Employment Opportunity Complaint), at 3-4 (emphasis in
original) (bracketed alterations supplied).
12

reimbursement of all attorney’s fees and expenses.37
On November 9, 2009, the TVA EEO agency dismissed plaintiff’s claims as
untimely because they were filed more than forty-five days after he learned of the
events leading up to the claims. TVA also found that plaintiff had stated insufficient
grounds to support extension or waiver of the time limits.38 Plaintiff appealed the
dismissal of his claims to the EEOC on December 9, 2009,39 but the EEOC has not
yet issued a decision on the appeal.
C.

Plaintiff’s 2010 Complaint
On April 26, 2010, plaintiff initiated EEO counseling with TVA’s internal EEO

agency on claims of race, color, sex, disability, and reprisal discrimination. No
details were provided about the nature of plaintiff’s claims, but as compensation,
plaintiff requested
1) To be compensated at the Level III Craftsman’s pay scale that
I so rightfully earned, and that it be retroactive for every hour I worked
at a Level II Craftsman’s Pay scale. 2) Reimbursement of 311.5 hours
of Annual Leave I was forced to take from May 29, 2009 thru June 24,
2009 and July 13 thru July 23, 2009. Further, upon consumption of
most all of my accumulated Annual Leave, I was also forced to take 168
hours of my accumulated Sick Leave from July 24, 2009 thru August 20,
2009 for which I am seeking reimbursement. 3) Reimbursement of

37

Id. at 4-5.

38

Doc. no. 22, at Exhibit 10 (Notice of Receipt and Dismissal of Discrimination Complaint).

39

Doc. no. 22, at Exhibit 11.
13

reasonable attorney fees and expenses.40
Informal conciliation efforts apparently were not successful, and plaintiff filed
a formal complaint of discrimination on the basis of race, color, sex, disability, and
reprisal with TVA’s EEO office on May 16, 2010. To support that complaint,
plaintiff stated:
Complainant has been discriminated against because of his race,
color, and/or sex. On March 28, 2010, Complainant discovered that a
comparator, Phyllis A. Ricks, was again performing the same job as
himself, administrative work. However, Ricks was classified and being
paid as a Level III craftsman while performing the job, while
Complainant was classified and being paid as a Level II craftsman.
Complainant was and is qualified to perform the job of a Level III
craftsman, with accommodation for his disability (MS). If Ricks does
not have a disability and requires no accommodation, then she should be
fulfilling the full duties and requirements of Level III craftsman, which
involves more than administrative work. Even if Ricks has a disability
and must be accommodated, her pay and classification are still higher
than Complainant’s, ostensibly because she is a black, African American
female. She has not been demoted as Complainant has been because of
a disability.
After the first instance when Complainant discovered Ricks was
being paid more and classified higher to do the same work, Complainant
attempted to file a grievance with the union. However, the union
representative refused to formally take the grievance, but kept a copy.
Upon information and belief, the union representative showed the
complaint to Ricks. Complainant was told Ricks was reassigned
appropriate work for her classification. Complainant has suffered
harassment and reprisal since, and Ricks has apparently continued to
perform the same work as Complainant, which Complainant discovered
40

Doc. no. 22, Exhibit 12 (EEO Counselor’s Report), at 2.
14

on March 28, 2010.41
Plaintiff also referenced some of his prior EEO complaints, including a September 28,
2009 complaint about the depletion of his annual and sick leave, an October 26, 2009
supplement to that complaint, and an April 26, 2010 complaint of disability
discrimination and reverse discrimination.42
On June 3, 2010, TVA’s EEO agency sent plaintiff a notice that it had accepted
for investigation all of his claims except the claim that he had been subjected to
reprisal for filing a union grievance. The reprisal claim was rejected because plaintiff
had not alleged that his union grievance encompassed any allegations about activity
that is protected by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq.43
After TVA’s EEO agency completed its investigation, plaintiff requested an
administrative hearing before an ALJ on October 2, 2010.44 On May 6, 2011, after
conducting a hearing, the ALJ found in favor of TVA on all of plaintiff’s claims.45
TVA adopted the ALJ’s opinion as its Final Agency Decision on June 17, 2011.46

41

Doc. no. 22, Exhibit 13 (EEO Complaint), at page 1 of the Attachment.

42

Id. at pages 2-14 of the Attachment.

43

Doc. no. 22, at Exhibit 14 (Notice of Receipt, Partial Acceptance, and Partial Dismissal).

44

Doc. no. 22, at Exhibit 15 (Request for Hearing).

45

Doc. no. 22, Exhibit 16, at 1 (Order Entering Judgment).

46

Doc. no. 22, at Exhibit 17 (Final Agency Decision).
15

Plaintiff appealed the agency’s decision to the EEOC on July 15, 2011,47 but the
EEOC has not yet ruled on the appeal.
IV. DISCUSSION
A.

Exhaustion of Administrative Remedies
Defendants characterize plaintiff’s complaint as asserting the following five

claims under the Rehabilitation Act:
(1) that TVA failed to promote him in 2003; (2) that TVA demoted him
in 2006; (3) that TVA did not allow him to work as an
“instructor/schedule coordinator” in 2008; (4) that TVA retaliated
against him in June, July, and August, 2009; and (5) that TVA pays nondisabled employees more than they pay Plaintiff.48
Defendants argue that the first, second, and fourth of these claims — for failure to
promote in 2003, demotion in 2006, and retaliation in 2009 — should be dismissed
due to plaintiff’s failure to exhaust administrative remedies.
“A plaintiff asserting a private right of action under the Rehabilitation Act must
satisfy the exhaustion of administrative remedies requirement in the manner
prescribed by Title VII.” Tarmas v. Secretary of Navy, 433 F. App’x 754, 759 (11th
Cir. 2011) (citing 42 U.S.C. §§ 2000e–5, 2000e–16; 29 U.S.C. § 794a; Doe v.
Garrett, 903 F.2d 1455, 1459–60 (11th Cir.1990)).49
47

Doc. no. 22, at Exhibit 18 (Notice of Receipt of Appeal)

48

Doc. no. 22, at 1. Defendant does not dispute that characterization.

49

See also Street v. United Parcel Service, Inc., 822 F. Supp. 2d 1357, 1364 (M.D. Ga. 2011)
16

Under . . . the Rehabilitation Act, federal employees are required
to initiate administrative review of any alleged discriminatory or
retaliatory conduct with the appropriate agency within 45 days of the
alleged discriminatory act. See [29 U.S.C. § 794a(a)(1)]; 42 U.S.C. §
2000e-16(b); 29 C.F.R. § 1614.105(a)(1); see also Mullins[ v. Crowell],
228 F.3d [1305,] 1310-11 [(11th Cir. 2000)] (applying the 45-day
exhaustion requirement to federal employees raising claims under the
Rehabilitation Act). When the discriminatory act results in a personnel
action, the employee must contact an EEO counselor “within 45 days of
the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). . . .
Generally, when the claimant does not initiate contact within the 45-day
charging period, the claim is barred for failure to exhaust administrative
remedies. See Brown v. Snow, 440 F.3d 1259, 1264-65 (11th Cir.2006)
(affirming the district court’s determination that the defendant failed to
establish that the plaintiff did not initiate contact within the 45-day
charging period).
Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008).
Plaintiff acknowledges that he did not initiate contact with the appropriate
administrative agency within 45 days of the 2003 failure to promote or the 2006
demotion, and that his claims based on those employment actions are therefore due
to be dismissed.50 Even so, he maintains that his retaliation claims are not barred,
despite the fact that he waited 118 days after he was first placed on leave to initiate
EEO counseling.51 According to plaintiff, his retaliation claims should be construed

(citing Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.2001)) (“A plaintiff may not sue
under . . . the ADA unless he first exhausts administrative remedies by filing a timely charge of
discrimination with the EEOC.”).
50

See doc. no. 26 (plaintiff’s response brief), at 1 n.1.

51

Plaintiff was placed on leave on May 29, 2009, according to the allegations of his
compliant. He did not initiate EEO counseling until September 24, 2009, 118 days later.
17

as a “continuing violation” of the Rehabilitation Act, and the last action that is a part
of that continuing violation occurred on August 20, 2009, the last day on which he
was forced to take leave. Because August 20, 2009 is within 45 days of September
24, 2009, plaintiff contends that he timely pursued the administrative remedies
available to him.
Plaintiff relies primarily upon the Eleventh Circuit’s decision in Beavers v.
American Cast Iron Pipe Co., 975 F.2d 792 (11th Cir. 1992). There, in a case
involving a Title VII discrimination claim for which the time limit for filing an
administrative complaint was 180 days, the Eleventh Circuit stated:
The standard for determining whether an employment practice
constitutes a continuing violation was set forth in Gonzalez v. Firestone
Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980). In Gonzalez, the
plaintiff alleged that Firestone’s policy of awarding job opportunities on
the basis of unvalidated standardized-test scores had a disparate impact
upon Spanish-surnamed employees. Firestone argued that Gonzalez’s
claim was barred because he had failed to file an EEOC charge within
the limitations period after the allegedly discriminatory policy had been
applied to deny him a promotion. The court disagreed. Id. at 249.
Where an employee charges an employer with continuously
maintaining an illegal employment practice, he may file a valid
charge of discrimination based upon that illegal practice until 180
days after the last occurrence of an instance of that practice.
However, where the employer engaged in a discrete act of
discrimination more than 180 days prior to the filing of a charge
withtheEEOCbytheemployee,allegationsthatthediscriminatoryactcontinuestoadverselyaffecttheemployeeor
that the employer presently refuses to rectify its past violation will not satisfy the
requirement of 42 U.S.C. § 2000e-5(e) that the plaintiff file his charge of
18

discrimination within 180 days of the discriminatory act.
Id. (citations omitted). In determining whether [the employer’s] policy
constitutes a continuing violation, therefore, we must distinguish
between the “present consequence of a one-time violation,” which does
not extend the limitations period, and the “continuation of the violation
into the present,” which does. See Webb v. Indiana National Bank, 931
F.2d 434, 438 (7th Cir.1991).
Beavers, 975 F.2d at 796.
Plaintiff also relies on the Lilly Ledbetter Fair Pay Act of 2009.52 That Act
amended Title VII of the Civil Rights Act of 1964 to state:
For purposes of this section, an unlawful employment practice
occurs, with respect to discrimination in compensation in violation of
this subchapter, when a discriminatory compensation decision or other
practice is adopted, when an individual becomes subject to a
discriminatory compensation decision or other practice, or when an
individual is affected by application of a discriminatory compensation
decision or other practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a decision
or other practice.
42 U.S.C. § 2000e-5(e)(3)(A).
The Act was intended to “clarify that a discriminatory compensation
decision or other practice that is unlawful under such Act occurs each
time compensation is paid pursuant to the discriminatory compensation
52

Plaintiff asserts that his claims are untimely under the Lilly Ledbetter Act because

he was subjected to discrimination in connection with the Agency’s failure to pay
him while forcing him to take leave on multiple dates during the time period asserted
and he initiated contact with an EEO counselor within 45 days of multiple dates on
which the Defendant failed to compensate him.
Doc. no. 26, at 4. That is basically a reiteration of his “continuing violation” argument.
19

decision or other practice, and for other purposes.” Pub.L. 111–2, 123
Stat. 5 (2009). The Act was a direct response to the Supreme Court’s
decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127
S. Ct. 2162, 167 L. Ed.2d 982 (2007), which imposed a more restrictive
interpretation of the limitations period for challenging discrimination in
pay. “The Act amends [the Rehabilitation Act] by providing that the
statute of limitations for filing an EEOC charge alleging pay
discrimination resets with each paycheck affected by a discriminatory
decision.” Groesch v. City of Springfield, Ill., 635 F.3d 1020, 1024 (7th
Cir.2011).
Tarmas v. Secretary of Navy, 433 F. App’x 754, 760 (11th Cir. 2011) (bracketed
alteration in original).
Plaintiff asserts that his claims are untimely under the Lilly Ledbetter Act
because
he was subjected to discrimination in connection with the
Agency’s failure to pay him while forcing him to take leave on multiple
dates during the time period asserted and he initiated contact with an
EEO counselor within 45 days of multiple dates on which the Defendant
failed to compensate him.53
The court is persuaded by plaintiff’s argument. Here, plaintiff’s allegations about
being forced to take leave in 2009 for retaliatory reasons can be considered part of a
discriminatory compensation decision or other practice. Plaintiff was forced to use
his annual and sick leave as a result of TVA’s allegedly retaliatory investigation into
his medication, and his lost leave was not restored when he was permitted to return
to work after the investigation. Therefore, under the Lilly Ledbetter Act, plaintiff was
53

Doc. no. 26, at 4.
20

affected by defendants’ retaliatory decision each day he was forced to use his leave,
as well as when his leave was not restored upon his return to work. As plaintiff filed
an administrative complaint within forty-five days of some of defendants’ allegedly
retaliatory actions, his claims will not be dismissed as untimely.
The court is aware that it does not possess all of the facts that are relevant to
plaintiff’s retaliation claim.

Discovery may reveal additional facts about the

investigation into plaintiff’s medication, and the resulting forced use of annual and
sick leave. If that occurs, defendants have leave to raise this exhaustion issue again
at summary judgment. In the meantime, however, plaintiff’s retaliation claim will be
allowed to proceed.
In summary, plaintiff’s claims for failure to promote in 2003 and demotion in
2006 are due to be dismissed as a result of plaintiff’s failure to exhaust administrative
remedies.
B.

Dismissal of Outrage Claim
Defendants next argue that plaintiff’s outrage claim is barred because the

Rehabilitation Act is plaintiff’s exclusive remedy. See, e.g., Brown v. General
Services Administration, 425 U.S. 820, 832-33 (1976); Lucenti v. Potter, 432 F. Supp.
2d 347, 366 (S.D. N.Y. 2006). Plaintiff concedes the dismissal of his outrage claim.54
54

Doc. no. 26, at 1 n.1.
21

Accordingly, that claim will be dismissed.
C.

Dismissal of Defendants TVA and Tom Kilgore
Defendants also argue that TVA and Tom Kilgore should be dismissed because

plaintiff’s Rehabilitation Act claims can only be brought against the TVA Board of
Directors. See, e.g., Watson v. Tennessee Valley Authority, No. 5:11–cv–02560–SLB,
2012 WL 2114496, at *3-4 (N.D. Ala. March 30, 2012). Plaintiff concedes this
argument.55 Accordingly, all claims against defendants TVA and Tom Kilgore will
be dismissed. Plaintiff’s remaining Rehabilitation Act claims will proceed against the
members and chairperson of the TVA Board of Directors.
V. CONCLUSION AND ORDER
In accordance with the foregoing, defendant’s motion for partial judgment on
the pleadings is GRANTED in part and DENIED in part. It is ORDERED that the
following claims are DISMISSED with prejudice: (1) plaintiff’s Rehabilitation Act
claims based on the 2003 failure to promote and the 2006 demotion; (2) plaintiff’s
claim for outrage (Count Three of his complaint); and (3) all claims against
defendants Tennessee Valley Authority and Tom Kilgore. The parties are directed
to proceed to discovery on all remaining claims.

55

Id.
22

DONE this 11th day of September, 2012.

______________________________
United States District Judge

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